A A : I I THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON The Federal Employers' Liability and Safety Appliance Acts B^ith Similar State Statutes and Federal Statutes on Hours of Labor SECOND EDITION BY W. W. THORNTON Of the Indianapolis Bar, Author of Oil and Gas, Pure Food and Drugs, etc. CINCINNATI, OHIO THE W. H. ANDERSON CO, 1912 r T3914f COPYRIGHT, 1909, BY THE W. H. ANDERSON CO. COPYRIGHT, 1912, BY THE W. H. ANDERSON CO. s^ PREFACE TO SECOND EDITION. It is now three years since the first edition of this work was issued. The Federal Employes' Liability statute was then less than a year old; and while there were several decisions construing several provisions of the unconstitu- tional Act of 1906, there was none construing this Act ^ 1908, The ground, therefore, to be ploughed was virgin soil. Since then this Act of 1908 has been before quite a number of courts, whose opinions construing it, in many of its parts, have been published. The constitutionality of the Statute has been firmly settled. The only dissenting voice is that of the Supreme Court of Connecticut, whose decision has been very severely criticised by the courts, and in an able report of the Judi- ciary Committee of the Senate of the United States in 1910. The Statute was amended in 1910 in two important in- stances. There is no longer any serious doubt that, under this Statute as amended, state courts now have jurisdiction over actions brought under this statute to recover damages. The courts also have fully settled the question that an interstate employee, in suing an interstate railroad com- pany, to recover damages for injuries he has sustained while in the employment of such company, is entitled to bring his action under this Statute, and that such railroad company can not insist its liability shall be measured by a statute of the state wherein the accident occurred. And possibly the courts will hold that such an employee must bring his action under this Statute, and not under a state statute. This question, however, remains to be settled. As nearly all of the employees engaged in moving traffic of a railroad company are interstate employees, the im- portance of this Statute is quite manifest to all who are con- cerned in litigation to recover damages for injuries sustained by a railroad employee. ^40062 PREFACE TO SECOND EDITION. Since this Avork was first published, there have been many decisions construing the Safety Appliance Act. Its construc- tion has been settled by three decisions of the United States Supreme Court, and its constitutionality determined. Ac- cording to two decisions of that court, this Statute applies to intrastate cars moved in a separate train over a railroad, which is "a highway of interstate commerce;" and that the Statute, as thus construed, is constitutional. Any one can readily see that this is a far-reaching result in constitutional law. A number of opinions of courts were inserted in the first edition of this \\ork as unreported decisions or opinions. Since this work was first published most of the opinions have been published in tlie Federal Reporter, but it has been deemed advisable by the xVuthor to retain these opinions, giving the volume and page of that publication, where they can be found. However, a number of opinions are inserted in this second edition, which have not yet been published, and which probably never will be. The Interstate Com- merce Commission have kindly furnished these to the Author. The Federal Statute on hours of labor for interstate em- ployees has been discussed in the last chapter of this work. The decisions construing it are of rather recent date. A number of states have adopted statutes wiping out the defense of contributory negligence, — following the Federal Statute — and the author has collected these in the last ap- pendix to this work. The Statute of the United States concerning hours of labor, interstate employees or interstate railroads, is discussed at length. W. W. 'THORNTON. Indianapolis, February 1, 1912. TABLE OF CONTENTS PART I. FEDERAL EMPLOYERS' ACT. PAGE Preface to second edition iji^ iv Preface v Table of Contents vii CHAPTER I. Abolition of Fellow Servant Rule. SECTION PAGE 1. Object and purpose of act of 1908 1 2. Rule of fellow servant in European countries 4 3. Quebec and Mexico G CHAPTER II. Constitutionality of Statute — Effect on State Legislation. 4. Power of Congress to increase liabilities of master 7 5. Authorizing a recovery for negligent act of fellow servant. . . 8 C. Basis of rule of master's nonliability for negligence of fellow servant 8 7. Validity of statute allowing a recovery for an injury occa- sioned by a fellow servant's negligence 11 8. Validity of statute as to past contracts of employment.... 14 t). Limiting statute to employees of railroad companies, Four- teenth Amendment 15 10. Validity of statute classifying instrumentalities 18 11. Power of Congress to enact statute of 1908 19 12. Constitutionality of Wisconsin and Nebraska statutes 21 13. Invalidity of Act of 190G 23 14. The parts of the Act of 1!)0G rendering it invalid 25 15. Congress can only legislate concerning interstate business. . 27 16. Efl'ect of Act of 1908 on state legislation 28 vii Xll'l TABLE OF CONTENTS. SECTION PAGE 17. KHVct of Act of 190S on state logislation, continued 30 IS. Ki'siilt of decisions 33 19. Must interstate employee bring liis action on the statute?.. 34 20. Act of ]!)0(i, validity in District of Columbia and territories 37 21. Construction of statute o7 CHAPTER III. To What Railroads Statute Arpi.iics. 22. Carrier within territories 39 23. Carriers engaged in interstate commerce 39 24. Intcrurban and street railway common carriers 43 2.J. While engaging in interstate commerce between the states.. 44 2(i. Illustrations on interstate commerce transactions 47 CHAPTER IV. To What Ejiployees Statutk Applies. 27. Only liable to its own employees 50 2S. What employee may bring his action ui)on the statute 50 2!t. 'Jrack repairer 56 .■JO. Statute includes everybody Congress could include; same per- isons in dillerent capacities; track repairer; telegraph ojierator 59 31. Car repairer in switching yard 61 32. i>;iying additional track on bridge; injury by interstate train 63 33. I>iading railroad iron rails; burden 63 31. "While" railroad was "engaging in" interstate commerce.... 64 35. WJicn an employee enters on his work, or is entitled to the jirotection of the statute 67 3(i. When employff enters on interstate work 70 37. Injun-d servant employed in both interstate and intrastate commerce 73 38. Employees covered by statute 75 39. Uelati(m between the employment and the accident 76 JO. W iio must inllict injury to render railway company liable. ... 78 41. Interstate emi»Ioyeo injured by negligence of interstate em- ployee SO •42. The Nebraska statute 83 43. \'alidity of statute allowing a recovery for an injury occa- bioned by an intranstate employee 84 TABLE OP CONTENTS. IX CHAPTER V. CONTRIBUTOEY NeGLIGEXCE AXD ASSUMPTION OF RiSK. SECTIOX PAGE 44. Contributory negligence — Statute 94 45. Assumption of risk — Statute Q5 4(5. Exceptions^ — 'Statute !)j 47. To Avliat statute reference is made 05 48. Contributory negligence as a defense 9(i 49. 'C ontributory negligence defined 97 50. Common-law rvile of contributory negligence preventing a re- covery 97 51. Definitions of degrees of negligence 98 52. Comparative negligence , 9'.) 53. Origin of rule of comparative negligence 99 54. Georgia statutes 100 55. Differs from federal statute 101 ■56. Georgia statutes construed 102 67. Contributory negligence of plaintiff before defendant's negli- gence began 104 58. Burden on plaintiff" to sbow freedom from his own fault lOt) 69. Charge to jury under Georgia Code 107 60. Recovery by a railway employee 108 61. Widow recovering for death of her husband — Georgia statute — Contributory negligence of deceased 108 62. Apportionment of damages 101) G3. An epitome of the Georgia cases 110 64. Comparative negligence in Illinois 114 65. Negligence a relative term lit! 66. Illinois rule extended 117 ■67. Ordinary care wanting — Plaintiff's negligence slight 117 68. Want of ordinary care defeats a recovery 119 69. Failure to exercise ordinary care more than slight negli- gence 121 70. Ordinary and slight negligence in their popular sense 121 71. Mere preponderance of defendant's negligence not sufficient — Defendant's clearly exceeding plaintiff's negligence.... 122 72. Gross and slight negligence distinguished 123 73. Plaintiff's negligence must be compared with that of the defendant 125 74. Plaintiff's negligence compared with defendant's 128 75. Willful injury by defendant — Slight negligence of plaintiff. . 130 76. Mere preponderance of negligence against defendant not suffi- cient 130 X T.VBLE OF CONTENTS. SECTIOX PAGE 77. Jury must compare llio m^jjligoiicc of the defendant with that of the phuutiir 131 7S. Instructions must require conipaiison 131 7!1. Illustration— Engine striking hand car— Unlawful speed 132 ,S(». Illustration — Mail crane striking fireman 132 51. Admiralty suits — Apportionment of damages 133 52. Origin of admiralty rule 135 83. Itule in admiralty commended 137 S-t. Dillieulty of apportioning damages 138 85. Assumption of risk 139 ^U. Contributory negligence docs n<'t prevent a recovery — How damages are apportioned 13!) 87. Negligence of plaintill' necessary to concur with defendant's to produce the injury 1^1 88. Court can not lay down exact rules for apportionment of damages 1-H 80. Statute does not adopt a theory of slight, ordinary and gross negligence 1^3 '.to. Directing the verdict — Due care 143 ill. Court telling jury particular acts constitute contributory negligence 145 !t2. Pailes of contributory negligence nnist be considered 14(3 '.13. Injury occasioned by defendant having violated a safety device statute 141} 04. Presenting the defense of contributory negligence — Burden. . . 14G !!.). When contributory negligence does not diminish damages.. 148 'M. Kxamples under Wisconsin statute HS 'J7. Practice under Wisconsin statute 163 CHAPTER VI. Death ]\y Wkoxgfui. Act. 08, Rtatntp 164 !t9. No action at common law 165 KM), (.'onstitutionality of statute allowing recovery for benehciaries 165 Kll. Doc-eased without right to recover 166 1(12. Failure of deceased to bring action IGtJ lfi:{. InstantanofuiH death 166 104. Survival of injured employee's csiuse of action 167 105. pH-neficiariM on death of injured employee 168 106. No Ini-band or widow surviving 16!) 107. Next 124. Costs 1S7 125. Suit by poor person 187 126. Death of beneficiary 187 127. Declarations of deceased 188 128. Distribution of amount recovered 188 129. Right of widow to sue under state statute 188 CHAPTER VII. Release of Claim for Damages. 130. What contracts of release forbidden 190 131. Constitutionality of Section 5 of this statute 200 132. Receipt of relief money 207 133. Contract for future release not binding on beneficiaries 20S 134. Release by beneficiary 208 CHAPTER VIII. Ix What Courts Suit May Be Brought. 135. PlaintiiT may bring suit in a federal court 210 130. Jurisdiction of state courts 212 137. Congress conferring jurisdiction on a state court 213 138. Removal of case to federal court 222 139. Where actions must be brought 222 140. Pleading 223 141. Common carriers defined — Receivers 224 142. Statute of limitations 224 Xii TABLE OF CONTENTS. SECTION PACK 143. Review on error -^-1 144. Statute not retroactive 226 145. State statutes requiring notiee uf injury to be given before bringing action 226 PART II. SAFETY APPLIANCE ACTS. CILVP'J KR IX. ObIGI.N. OiiJECT, C'ONSTnUTiC^NAI.ITY A.XU J NTEUrUETATIOX OF STATUTE. 146. Origin of safety appliance act 229 147. Resolutions of American Railway Association 232 148. Object of statute — Construction 232 140. Constitutionality of statute 234 l."j(t. Interpretation of statute 237 150<(. State legislation concerning safety appliances 238 CHAPTER X. Use in Inteestate Traffic. l.jl. What is interstate commerce — Test 243 \')2. Wiiat is interstate commerce 244 153. Interterritorial commerce — Act of 11)03 246 154. Use of car forbidden 246 155. Inhibition of statute — Car employed in interstate trallic. . . . 248 156. Car in use, what is 250 157. K:i:jity car in interstate train 250 158. Hauling or using car not loaded with interstate traflic in interstate train 251 15!i. Intrastate car im interstate raiJioad 252 ItiO. Transportation of articles of interstate commerce for an inde- |H'ndent express company 256 161. Distance defective car liauled 258 162. Switching car 25!) 163. Belt railroad — Terminal roid 260' 164. Car on spur track 261 163. "Used in moving interstate tra/Tic" — Sending car to repair shoj) — Making up train 262 1(K>. Hauling car not essential to commission of offense — Use of car 263 TABLE OF CONTENTS. X1H SKCTION PAGE 107. Car not used in interstate commerce 264 168. Interstate car in "connection" with intrastate car 264 169. Use of car in interstate commerce 266 170. Temporary suspension of transportation 267 171. Permitting cars to be hauled over itb lines 267 172. Defendant hauling car over another company's line of railway 26S 173. Freight designed for another state — Not yet left the first state 269 174. Intrastate traffic — Narrow gauge railroad wholly within state 260 175. Intrastate railroad engaged in carrying interstate commerce articles 271 176. United States against Geddes denied 273 177. Efl'ect of the case of Southern Railway Company against Ignited States, on Geddes and Colorado cases 283 178. Burden — Reasonable doubt 285 CHAPTER XI. Cars axd Theib Equipment. 179. What is a car within tlie meaning of the statute 288 180. Electric cars 290 181. Empty car — Car used in moving interstate commerce 291 182. Empty car used in interstate train 292 183. Proviso to Section 6 — Four-wheeled and logging cars 293 184. Kind of coupler to be used 293 185. "\Mthout tlie necessity of men going between the ends of cars 296 186. Both ends of every car must be equipped with automatic couplers 297 187. Uncoupling 298 188. Erroneous instructions concerning height of drawbars 298 189. Construction of Section 5 299 190. Insufficient operation of coupler 300 191. Improper operation of sufficient coupler 300 192. Preparation of coupler for coupling 300 193. "M. C. B. defect card" :iOO 194. Receiving an improjjerly equipped foreign car 301 195. Question for jury 301 196. When a federal question is presented 301 197. State statute on same subject applicable to intrastate com- merce 303 198. Handholds— Through train 303 199. Handholds on roof of car — Sill steps — Handbrakes — Ladders — Running boards 304 Xiv TABLE OF CONTENTS. CHAPTER XII. Repairs. SECTIO.X PAGE 200. Degree of diligence to make repairs 30G 201. Usp of diligence to discover defects — Want of knowledge of defect 308 202. Duty to maintain car in repair is an absolute one 310 203. Presumption — Diligence to discover defects and make repairs in transit 313 204. Distinction between an action to recover a penalty and to recover damages 322 205. Cars in transit — Construction of statute 322 20(J. Hauling car to nearest repairing point 328 207. Distinction of car nearer than repair shop 331 208. Repairing cars in transit 332 201). Repairs during journey 335 210. Establisliing repair shops and material 335 211. Knowledge of defect not an element of the oU'ense 335 212. Failure to provide or repair defective handhold 337 213. Use of "shims" — Common-law duty of master not applicable — Fellow servant's neglect — Construction of statute — Hand grips 339 214. Reixiiring couplers — Other act of negligence aiding negligence with reference to couplers 341 215. Failure to equip train with brakes 342 CHAPTER XIII. Negligent Injury. 216. Use of car without automatic couplers is negligence per up 346 217. Failure to equip car a continuing negligence 346 2 IS. Wlio may bring action to recover damages — What employees are engaged in interstate commerce 347 219. Proximate cauf-ping Cars 510 liiiiliT inspector's Statute 513 APPENDIX E. Ash Pans 520 APPENDIX F. Hours of LalKir for Railroad ^len 522 APPENDIX a. Decisions Unrepnrted Under Safety Appliance Acts 525 APPENDIX H. SUto Statutes 711 TABLE OF CASES [References are to pages.] Abel V. Northampton, etc., Co. (212 Pa. St. 329; (il Atl. Rep. 915), 109. Ableman v. Booth (21 How. 500; 02 U. S. XVI, lO'J), 440. Acker.son v. Dennison (117 Mass. 407), 11. Adair v. United States (208 U. S. 101; 28 Sup. Ct. 277; 52 L. EU. 430; reversing 152 Fed. 737), 22, 197, 235. Adams v. British & F. S. S. Co. (1898), (2 Q. B. 430), 170, 177. Adams v. Northern Pac. Co. (95 Fed. 938), 208. Agnew V. United States (105 U. S. 50; 17 Sup. Ct. 235; 41 L. Ed. 624), 318. Akeson v. R. Co. (100 Iowa, 54; 75 N. W. 67G), 19, 201. Alabama, The (92 U. S. 095; 23 L. Ed. 703; reversing 11 Blatchf. 482; Fed. Cas. No. 123), 138. i^labama, etc., R. Co. v. Coggins (88 Fed. Rep. 455; 32 C. C. A. 1), 110. Alexandria, The City of (17 Fed. Rep. 390), 133. Alfson V. Bush Co. (182 N. Y. 393; 75 N. E. 230), 109, 170. All V. Barnwell County (29 S. C. 101; 7 S. E. Rep. 58), 176. Allgeyer v. Louisiana (105 U. S. 578; 17 Sup. Ct. 427; 41 L. Ed. 832), 196. Aluminum Co. v. Ramsey (32 'Sup. Ct. 76), 17. America, The (92 U. S. 432), 134. American Ins. Co. v. Canter ( 1 Pet. 511, 544; 7 L. Ed. 242), 219. Americus v. Joiinson (2 Ga. App. 37S; 58 S. E. Rep. 518), 111. Americus, etc., Ry. Co. v. Luckie (87 Ga. 0; 13 S. E. 105), 105, 107, 110. Anderson v. Tlie Asliebrooke (44 Fed. Rep. 124), 133. Anderson v. Chicago, etc., R. Co. (35 Neb. 95; 52 N. W. 840), 180. Andrews v. Hartford, etc., R. Co. (34 Conn. 57), 175. Anthony, etc., Co. v. Ashby ( 198 111. 502; 64 N. E. 1109), 184. Ariadne, The (13 Wall. 475; 20 L. Ed. 542; reversing 7 Blatchf. 211; Fed. Cas. No. 525), 133. Armitage v. Lancashire & G. N. Co. (4 Minton-Senhose W^ork- men's Compensation Cases, 5 ) , 77. Asbestos, etc., Co. v. Durand (30 Car. S. C. 285), 0. Atchison Ry. Co. v. Calhoun (213 U. S. 1),' 075. Atchison, etc., Ry. Co. v. Feehan (149 111. 202; 30 N. E. Rep. 108C), 100. Atchison, etc., R. Co. v. Fajardo (74 Kan. 314; 86 Pac. Rep. 301), 169, 176. xvii XVI 11 TABLE OF CASES. [References arc to pages.] Atchison, etc., R. Co. v. Henry (57 Kan. 154: 45 Pac. Rep. 57G), 99, 100. Atchison, etc., Ry. Co. v. ^klills (49 Tex. Civ. "App. 349; 108 S. W. 480), 27, 37. Atchison. T. & S. F. Ry. Co. v. United States (172 Fed. 194; 96 C. C. A. 646), 347, 350, 370, 375, 376. Atchison, T. & S. F. R. Co. v. United States (172 Fed. 1021; 96 C. C. A. 664), 313. Atchison, T. & S. F. Ry. Co. v. United States (177 Fed. 114; affirmed 220 U. S. 37; 30 Sup. Ot. 362; 55 L. Ed. 361), 390. Atlanta v. Harper (129 Ga. 415; 59 S. E. Rep. 230), 112. Atlanta, etc., R. Co. v. Ayers (53 Ga. 12), 109, 112. Atlanta, K. & N. Ry. Co. v. Gard- ner (122 Ga. 82; "49 S. E. 818), 106. Atlanta, etc., R. Co. v. Loftin (86 Ga. 43; 12 S. B. Rep. 1&6), 110. Atlanta, etc., R. Co. v. ONeil (127 Ga. 685; 56 S. E. Rep. 986), 111. Atlanta, etc., Ry. Co. v. Weaver ( 121 Ga. 466 ; 9 S. E. Rep. 291 ) , 113. Atltanta, etc., R. Co. v. Wyly (65 Ga. 120), 109. Atlantic Coast Line v. Riverside Mills (219 U. S. 186; 31 S. C. 164: 55 L. Ed. 167; ainrming 1(58 Fed. 990), 202, 36S. Atlantic Coast Line R. Co. v. United States (108 Fed. 175; affirming,' 153 Fed. 918), 233, 235, 238, 309, 312, 349, 350, 370, 371, 372. 375, 378, 708. Atlantic Coast Line R. Co. v. Wharton (207 U. S. 328; 28 Sup. Ct. 121; 52 L. Ed. — ), 21, 239. Atlee V. Packet Co. (21 Wall. 389: 22 L. Ed. 619; reversing 2 Dill, 479; Fed. Cas. Xo. 10341), 133, 138. Attorney-General v. Railroad Cos. (35 Wis. 425), 12. Augusta, etc., R. Co. v. Killian (79 Ga. 236; 4 S. E. 164), 109, 110. Auyusta, etc., R. Co. v. McElmurry (24 Ga. 75), 112. Augusta, etc., R. Co. v. Snider (118 Ga. 146; 44 S. E. 1005), 113. Augusta S. R. Co. v. Wrightsville & T. R, Co. (74 Fed. 522), 48. B. & C, The (18 Fed. Rep. 543), 134. Baker v. Bolton (1 Campb. 493), 1G5. Baltimore, etc., R. €0. v. Bald- win (144 Fed. Rep. 53), 169. Baltimore, etc., R. Co. v. Colvin (30 Ohio Cir. Ct. A])p. 110), 388, 393. Baltimore, ete., R. Co. v. Colvins (118 Pa. St. 230; 12 Atl. 337; 20 W. N. C. 531), 11. Baltimore, etc., R. Co. v. Holtmun (25 Ohio C. C. 140), 209. Bailtimore & Ohio R. Co. v. Inter- state Commerce Ckimmission (221 U. S. 612: 31 Sup. Ct. 621; 55 L. Ed. 878), 380, 381, 382, 386. Baltimore & Ohio R. Co. v. .Joy (173 U. S. 226), 425, 447. liiiltimore, etc., R. Co. v. Ray (36 Ind. App. 430; 73 N. E. "942), 192, 193. Baltimore, etc., R. Co. v. Voiglit (170 U. S. 498: 44 L. Ed. 560; 20 Sup. Ct. 385), 12. Bank v. Bank (108 Tenn. 374), 670. TABLE OF CASES. XIX [References are to pages.] Bank v. Dalton (9 How. 522, 528; 13 L. Ed. 242), 281. Bank of the United States v. Deveaux (5 Cranch, 61; 3 L. Ed. 38), 219. Banks v. J. S. Schofields Sons' Co. (13U (;a. GU7; 5.j S. E. Rep. 39), 111. B:irnes v. Columbia Lead Co. ( 107 Mo. App. 608; 82 S. W. 203), 182. Barne.g v. Ward (9 C. B. 392), 17S. Barnuni v. Chicago, etc., R. Co. (30 Minn. 461; 16 N. W. Rep. 364), 173, 178, 179. Barton's Hill Coal Co. v. Ried 3 Marq. H. L. Cases, 206), 11. Beaumont, etc., R. Co. v. Dilworth (16 Tex. Civ. App. 257; 94 S. W. 352, supra,), 170, 182, 183. Beck V. Pennsylvania R. Co. (Pa.) (43 Atl. 90S; 76 Am. St. 211), 192. Eelanger v. Riopel ( 3 Montreal, S. C. 198), 6. Belden v. Chase (150 U. S. 691; 14 Sup. Ct. Rep. 269; 37 L. Ed, 1218; reversing 117 N. Y. 637; 22 N. E. Rep. 963), 135. Belt Ry. Co. v. United States (168 Fed. 542), (reported), 47, 48, 49, 269, 557. Bennett v. Worthington (24 Ark. 487, 494), 282. Benson v. Railway Co. ( 75 Minn. 163; 77 N. W. 798), 289. Bcsenecker v. Sale (8 Mo. App. 211), 180. Best V. Town of Kingston ( 106 N. C. 205; 10 S. E. Rep. 997), 174. Betterly v. Boyne City, G. & A. R. Co. (158 Mich. 385; 122 N. VV. 635; 16 Det. Leg. N. 628), 295. Binion v. Georgia, etc., R. Co. (118 Ga. 282; 45 S. B. Rep. 2T6), 113. Pjiriningham, etc., Ry. Co. v. Gunn (141 Ala. 372; 37 So. Rep. 329), 179. Britfield v. Stanahan (192 U. S. 470), 234. Black V. Baltimore, etc., R. Co. (36 Fed. 655), 192. Black V. Charlestown & W. C. Ry. Co. (S. C), (69 S. E. 230), 381. Blackburn v. Cherokee Lumber Co. (152 N. C. 361; 67 S. E. 915), 296, 350. Blake v. ]\Indland Ry. Co. (18 Q. B. 93; 21 L. J. Q. B. 233; IG Jur. 562), 180, 181. Blackstone v. Central Ry. Co. ( 102 Ga. 489; 31 S.' E. 90), 108. Blanchard v. Detroit, etc., R. Co. (139 Mich. 694; 103 N. W. 170; 12 Det. Leg. N. 30), 290, 303. Bledsoe v. Stokes (1 Baxt. 312), 175. Bletz V. Columbia Nat. Bank (87 Pa. 92; 30 Am. Rep. 345), 215. Blount V. Gulf, etc., R. Co. (Tex. Civ. App.), (82 S. W. 305), 209. Blumenthal v. Craig (81 Fed. 320; 26 C. C. A. 427), 358. Board v. Toronto Ry. Co. ( 22 Out. App. 78; affirming 24 Can. Sup. Ct. 715), 295. Boldt V. New York Central R. Co. 18 N. Y. 432), 72. Bolton V. Frinlc (51 Conn. 342; 50 Am. Rep. 24), 142. Bond V. Seeracc (2 Dev. 576), 106. Bonnell v. Jowett (24 Hun, 524), 174. Bonthron v. Phoenix Light & Fuel Co. (8 Ariz. 129; 71 Pac. 941), 176. XX TABLE OF CASES. [References ar Bordentown, The (10 Fed. Rep. 270), 134. lioston, etc., R. Co. v. ilcDufTcy (25 C. C. A. 247; 51 U. S. App. Ill; 73 Fed. 934), 6. Roston, etc., R. Co. v. State (32 X. H. 215), 166. Rottonis V. St. Louis & S. F. R. Co, (17!) Fed. 318), 35, 37, 222. | Boucher v. Wisconsin Cent. Rj'. Co. i (141 Wis. 100; 123 N. W. 913), 143. 145, 162. Rourdeau v. Grand 'I'runk Ry. Co. I (2 Low Can. L. ,1. ISO), 0. Bowen v. Illinois Central R. Co. (136 Fed. 306), 77. liowernian v. Lackawanna, etc., Co. (Mo. App.), (71 S. W. Rep. 1062) : B. V. L. Mining Co. (98 Mo. App. 308; 71 S. W. 1002), 170, 184. Bowler v. I^ane (9 Met. (Ky.) 311). 179. BowTnan v. Cliicago, etc., Ry. Co. (125 U. S. 465, 479, 480, 481, 484, 4S5, 48S, 489, 490, 491, 507, 508; 8 Sup. Ct. 089, 1002; 31 L. Kd. 700), 280. Boyd V. Clerk (8 Fed. Rep. 849), i74. Boyle V. Columbia, etc., Co. (182 Mass. 93: 64 N. K. Rep. 720), 170. Bradbury v. Cliicago, X. I. & P. Ry. Co. (149 Iowa, 51; 128 N. W. 1), 37, 211, 214. Bradford, City of v. Do^vns (126 Pa. St. 622"; 17 Atl. Rep. 884), 175, 188. Branan v. May (17 Ga. 130), 110, 112. Brannipnn v. I'nion Gold Min. Co. (C. C), (93 Fed. 104), 177. Brazil, etc., Co. v. Hoodlet (129 Ind. 327; 27 N. E. Rep. 741), 142. Brickman v. Soiitlicrn R. Co. (74 S. C. 300; 54 S. K. 553), 184. e to papos.] Brig James Gray v. Ship John Frailer (21 How. 184; 16 L. Ed. 100), 29. Briggs V. Chicago & N. W. Ry. Co. (125 Fed. 745), 290, 348. Briggs V. Taylor (28 Vt. 183), 142. BrinkerhofT v. Bostwick (88 N. Y. OU), 215. Brinkmeier v. Missouri Pac. Ry. Co. (81 Kan. 101; 105 Pac. 221), 313. Briscoe v. Southern Ry. Co. ( 103 Ga. 224; 28 S. E. Rep. 638), 110. Brc^oks V. Southern Pac. Co. ( 14S Fed. 24; affirmed 207 U. «. 403; 43 Sup. Ct. 28 ; 52 L. Ed. 297 ) , 24. Brown, Admr. (Cas. 193; Fed. Cas. Ko. 3504), 240. Brown v. Buffalo, etc., R. Co. (22 N. Y. 191), 107. Bro^^^^ v. Cluittanooga Elec. R. Co. (101 Tenn. 252; 47 S. W. 415*), 209. Bro\\Ti V. iliaryland ( 12 Wheat. 419, 448; L. E. 078), 279. Brown v. Southern Ry. ( o. (05 S. C. 200; 43 S. E. 794), 184. Brown Store Co. v. Cliattahoochee (1 Ga. App. 009; 57 S. E. Rep. 1043), 112. Brown Store Co. v. Chattahoochee Lumber Co. (121 Ga. 809; 49 S. E. Rep. 839), 112. Brownell v. Pticific R. Co. ( 47 I\Io. 240), 188. Brunswick, etc., R. Co. v. Gibs^ou (97 Ga. 497; 25 S. E. 484; 97 Ga. 489), 105, 107, 110. lirunswick, etc., R. Co. v. Hoover (74 Ga. 420), 109. Bucklew V. Central R. Co. (01 Iowa, Oil), 12. Bullock V. White Star Steamship CV). (30 Wash. 448; 70 Pac. 1100), 387. TABLE OF CASES. XXI [References are to pages.] Burdctt, The (9 Pet. 690), 318. Burlington, etc., R. Co. v. Crockett (17 Neb. 570; 14 N. VV. Rep. 219; 24 N. W. 219), 173, 180. Butler Bros. Shoe Co. v. United States Rubber Co. ( 156 Fed. 1 ) , 47. Cain V. Macon, etc., R. Co. (97 Ga. 298; 22 S. E. 918), 107. Caldwell v. North Carolina (187 U. S. 622; 23 Sup. Ct. 229; 47 L. Ed. 336; reversing 127 N. C. 521; 37 S. E. 138), 244, 257, 280. California Bank v. Kennedy ( 107 U. S. 362; 17 Sup. Ct. 831; 42 L. Ed. 198; reversing 101 Cal. 495; 40 Am. St. 69; 35 Pac. 1039), 302. Callahan v. St. L. Mer. B. Co. (170 Mo. 473; 71 S. W. 20S; 60 L. R. A. 249; affirmed 104 U. S. 028), 14, 56. Calumet, etc., Co. v. Nolan (69 111. App. 104), 100. Cameron, etc., Co. v. Anderson (98 Tex. 156; 81 S. W. 282), 182. Campbell v. Chicago, M. & St. P. Ry. Co. (86 Iowa, 563; 53 N. W. 323), 48, 249. Campbell v. Chicago, R. I. & P. Ry. Co. (149 111. App. 120; affirmed 243 111. 620; 90 N. E. HOC), 285. Cam^jbell v. Spokane & I. El. R. Co. (188 Fed. 516), 44, 291, 347. Canadian Pac. Ry. Co. v. Robinson (14 Can. Sup.'ct. 105), 6, 180. Cardwell v. American Bridge Co. (113 U. S. 205; 5 Sup. Ct. 423; 28 L. Ed. 959; affirming 19 Fed. 562; 9 Savpy. 662), 92. Carey v. Berkshire 11. Co. ( 1 Cush. 475), 165. Carl, The (18 Fed. Rep. 655), 139. Carlisle, The City of (39 Fed. Rep. 807), 133. Carlisle v. United States ( 16 Will. 153; 21 L. Ed. 426; reversing 6 Ct. CI. 398), 318. Cannaday v. A. C. A. (143 N. C. 439; 55 S. E. 836; 8 L. R. A. (N. S.) 939), 192 Carrigan v. Stillwell (97 Me. 247; 54 Atl. Rep. 389; 61 L. R. A. 163), 178. Carroll v. Missouri Pac. Ry. Co. (88 Mo. 239), 166. Carson v. Dunham (121 U. S. 421; Sup. Ct. 1030; 30 L. Ed. 992), 366. Carson v. Southern Ry. Co. ( 68 S. C. 55; 46 S. E. 525), 313. Carter v. North Carolina R. Co. (139 N. C. 499; 52 S. E. 642), 182. Catharine, The (17 How. 170; 75 L. Ed. 233), 138. Caulkins v. Matthews (5 Kan. 191), 100. C!avanagh v. Ocean, etc., Co. ( 13 N. Y. Supp. 540; 9 N. Y. Supp. 198; 11 N. Y. Supp. 547; 12 N. Y. Supp. 609), 174. Cawood V. Chattahoochee ( 126 Ga. 159; 54 S. E. Rep. 944), 111. Celt, The (3 Hagg. 328n), 133. Central, etc., R. Co. v. Ottaway (90 Ga. 661; 16 S. E. 956; 90 Ga. 65; 16 S. E. 958), 104, 110. Central R. Co. v. Brinson (04 Ga. 475), 109. Central R. Co. v. Brinson (70 Ga. 207; 64 Ga. 479), 100, 102, 104. Central, etc., R. Co. v. Denis ( 19 Ga. 437), 100. Central R. Co. v. Dixon (42 Ga. 327), 112. Central Ry. Co. v. Dorsey ( 100 Ga. 826; 32 S. E. Rep. 873), 110. xxu TABLE OF CASES. [References ar« Central Rj. Co. v. Harper (124 j Ua. 830; 53 S. E. Rep. 391), I 111. I Central Ry. Co. v. MeClifford (120 Ga. 90"; 47 S. E. Rep. 5!)0), | 111. I Central Ry. Co. v. :McKinney (118 | Ga. 535'; 45 S. E. Rep. 430; 116 ' Ga. 13: 42 S. E. Rep. 229), 111, 113. Central Rv. Co. v. Price (121 Ga. j G51: 49* S. E. Rep. 083), 113. Central R. Co. v. Soars (GO Ga. 499), 186. Central, etc., R. Co. v. Smith (78 Ga. 694; 3 S. E. Rep. 397), 112. Central Georgia Ry. Co. v. Clay (3 Ga. App. 280; 59 S. E. Rep. 843), 111. Central of Georgia Ry. Co. v. Moore (5 Ga. App. 502: 03 S. E. 042), 106. Centnil of Georgia R. Co. v. Sims (103 Ala. 609; 53 So. 826), 211. Central of Georgia Ry. Co. v. Waldo (6 Ga. App.' 840; 65 S. E. 1098), 92. Centralia v. Krouse (64 111. 19), 120. Cetonfonte v. Camden Coke Co. (78 N. J. 662; 75 Atl. 913), 176. ChatTee v. I'nited States (18 Wall. 545: 21 L. Ed. 908; reversing Fed. Cos. No. 14774), 31S, 371. Clianiberlain v. Ward (21 How. 548: 10 L. Ed. 211: affirming Fed. Cas. No. 17151), 133. Chandler v. Southern R. Co. (113 Ga. 130; 38 S. E. 305), 14. Chappcl V. Waterwortli (155 U. S. 102; 15 Sup. Ct. 34; 39 L. Ed. 85: reversing 39 Fed.), 305. Chateaugay v. Hlake (144 U. S. 476), 676. Chattanooga S. |{. Co. v. Myers ( 112 (.a. 237: 37 Ga. 439), 108. to pages.] Chenoll v. Palmer Brick Co. (117 Ga. 106; 43 S. E. Rep. 443), 113. Chesapeake & 0. Ry. Co. v. Hoff- man (03 S. E. 432), 56. Chew Heong v. United States (112 U. S. 536), 639. Chicago v. Barker (131 Fed. 161), 77. Chicago, R. I. & P. Ry. Co. v. Arkansas (222 U. S. — ; 31 ■Sup. Ct. 275; 56 L. Ed. — ), 343. Chicago, etc., R. Co. v. Beaver (199 111. 34; 65 N. E. 144), 184. Chicago, etc., Ry. Co. v. Bell (Neb.) (62 N. W. 314), 192. Chicago, etc., Ry. Co. v. Bentz (38 ill. App. 485), 120. Chicago, etc., R. Co. v. Bigley (Neb.), (95 N. W. 341), 192. Chicago, R. I. & P. Ry. Co. v. Brown (185 Fed. 80), 356, 360. Cliicago, etc. R. Co. v. Cass (73 111. 394), 120, 127. Chicago, etc.. R. Co. v. Clark ( 70 111. 276), 123. Chicago, etc., R. Co. v. Cummins (24 Ind. App. 192; 53 N. E. 1020), 179. Chicago, etc., R. Co. v. Curtis (51 Neb. 442; 71 N. W. 42), 191. Cliicago, etc., R. Co. v. Devv-ey (26 Jll. 255), 116, 120, 127. ( hieago, etc.. R. Co. v. Digiiaui 1 -'iti 111. 487), 129. Chicago, etc., R. Co. v. Dillon ( 17 111. Ap)). 355), 126, 132. Chicago, etc., R. Co. v. Dimick (96 111. 42), 123, 131, 132. ( hicngo. etc.. R. Co. v. Donainie (75 111. 100), 130. Chicago, etc., R. Co. v. Dougherty (12 ill. App. 181), 120. Chicago, etc., R. Co. v. Drescoll (207 III. 9; 69 N. E. 020), 182. TABLE OF CASES. XXlll [References are to pages.] Chicago, etc., Ry. Co. v. Dunleavy (129 111. 132; 22 N. E. Rep. 15), 125, 127. Chicago, etc., R. Co. v. Dunn (01 111. 384), 129, 130. Cliicago, etc., R. Co. v. Fears (.33 111. 115), 12G. Chicago, etc., R. Co. v. Fetsam (123 111. 518; 15 N. E. 1(j9), 119, 125. Chicago, etc. R. Co. v. Flint (22 111. App. 502), 120. Chicago, etc., R. Co. v. Gravy (58 111. 83), 129. Chicago, etc., R. Co. v. Gregory (58 111. 272), 120, 133. Chicagtt, etc., R. Co. v. Gretznor 46 111. 74; 46 111.83; 46 111. 75), 117, 120, 123, 127, 129. Chicago, etc., R. Co. v. Harshman (21 Ind. App. 23; 51 N. E. 343), 1S7. Chicago, etc., R. Co. v. Ilarwood (90 111. 425), 131, 132. Chicago, etc., R. Co. v. Hazzard (26 III. 373), 107, 120, 127. Chicago, etc.. R. Co. v. Healy ( 76 Neb. 783; 107 N. W. 1005; 10 L. R. A. (N. S.) 198), 192. Chicago, etc., R. Co. v. Hogarth. 38 111. 370), 127, 129. Chicago, etc., R. Co. v. Holmes (68 Neb. 820; 94 N. W. 1007), 184. Chicago, etc., R. Co. v. Johnson (116 111. 206; 4 N. E. 381; 103 111. 512), 128, 116, 117, 119, 120, 121, 122, 124, 125. Chicago Junction Ry. Co. v. King (109 Fed. 372; 94 C. C. A. 652; affirming 32 Sup. Ct. 79), G2, 63, 75, 234, 238, 251, 252, 25S, 295, 309, 312, 335, 347, 348, 350, 355, 356, 364, 373, 675, 682. Chicago, etc. R. Co. v. Kinmare (115 111. App. 132), 178. Chicago, etc., R. Co. v. Krueger (124 111. 457; 17 N. E. Rep. 52; athrming 23 111. App. 639), 126. Chicago, etc., R. Co. v. La Porte (33 Ind. App. 691; 71 N. E. Rep. 166), 173, 178, 179, 180. Chicago, etc., R. Co. v. Lee (68 111. 576; 00 111. 501), 126, 127, 130, 131. Ctiicago, etc., R. Co. v. Longley (2 111. App. 505), 125. Chicago, B. & Q. R. Co. v. Mc- Guire (219 U. S. 549; 31 Sup. Ct. 259; 55 L. Ed. — : affirm- ing, 138 Iowa 664; 116 N. W. 801), 202, 368. Chicago V. Major, 18 111. 349), 169. Chicago, R. I. & P. Ry. Co. v. Martin, 59 Ken. 437; 53 Pac. 461), 202. Chicago, etc., R. Co. v. Miller (76 Fed. 439), 202. Chicago, etc., R. Co. v. Miller (22 C. C. A. 264), 191. Chicago, M. & St. P. R. Co. v. Minnesota (134 U. S. 418; 10 Sup. Ct. 462, 702; 33 L. Ed. 970), 249. Chicago, etc., R. Co. v. Mock (72 111. 141), 130. Chicago, etc., R. Co. v. Morris (26 111. 400), 173. Chicago, etc., R. Co. v. ilurray ( 02 III. 326), 126, 130. Chicago, etc., R. Co. v. O'Connor (13 111. App. 62), 126, 132. Chicago & N. W. Ry. Co. v. 03- born (52 Fed. 912), 48. Chicago, etc., R. Co. v. Olsen ( 70 Neb. 559; 97 N. W. 831; 99 N. W. 847), 192. Chicago, etc., R. Co. v. Payne (59 111. 534), 121, 131. Cliicago, etc., R. Co. v. Pondrom (51 111. 333), 128, 129. Chicago, etc., R. Co. v. Pontius ( 157 U. S. 209; 15 Sup. Ct. 585; 39 XXIV TABLE OF CASES. [References are to pagos.] L. Ed. 675: afTirming r)2 Kan. 264; 34 Pac. 739), 19, 22, 55. Chicago, etc., R. Co. v. Pontius (52 Kan. 204; 34 Pac. 73!): ;ittirnicd. 157 U. S. 209; 15 Sup. Ct. 585; 39 L. Ed. G75), 17. Chicago, etc., R. Co. v. Pounds (11 Lea (Tenn.) 130), IGG. Chicago, etc., R. Co. v. Pullman Southern Car co. (139 U. S. 79; 11 Sup. Ct. 490; 35 L. Ed. 97), 387. C'hicago, etc., R. Co. v. Rogers (17 HI. App. 638), 120. Chicago, etc., R. Co. v. Ross (112 U. S. 377; 28 L. Ed. 787; 5 Sup. Ct. Rep. 184), 11. Chicago, etc., R. Co. v. Ryan (70 111. 211; S. S. 60 111. 17*2), 119, Cliicago, City of v. Scholten ( 75 III. 408), 180. Oiicago. etc., R. Co. v. Simmons (38 111. 242), 127. Chicago, R. I. & P. R. Co. v. Stahley (62 Fed. 303), 55, 57. Chicago, etc., Ry. Co. v. State (86 Ark. 412; 111 S. W. 450), 364. Chicago V. Stearns (105 111. 5.14), 126, 127, 131. Chicago, etc., R. Co. v. Still (19 111. 499), 129. Chicago, etc., R. Co. v. Sweeney (52 111. 325), 129. Chicago, etc., R. Co. v. Thomas (155 Ind. 634; 58 N. E. Rep. 1040), 178. Cliicago, etc., R. Co. v. Thorson (11 III. App. 631), 120. Chicago, etc., R. Co. v. United States (165 Fed. 425), 259, 260, 262, 203, 267. Cliicago, etc., R. Co. v. United States (168 Fed. 23fi; 21 L. R. A. (N. S.) 690). 234, 247, 250, 265, 267, 292, .307, 330, 331, 371, 072. Chicago, B. & Q. Ry. Co. v. United Stiites (170 Fed. 556), 307, 313, 370, 372. Chicago, B. & Q. Ry. Co. v. United States, 220 U. S. 559; 31 Suo. Ct. 612; L. Ed. 521, 582), 2-32, 233, 311, 322, 370, 378, 381, 709. Chicago, M. & St. P. R. Co. (165 Fed. 423; 91 C. €. A. 371; 20 L. R. A. (X. S.) 473), 49, 290, 292, 303, 309, 312, 331, 334, 335, 074, 681. Chicago, M. & St. Paul Ry. Co. (136 W. B. 407; 117 N. W. 686), 380. Chicago, etc., R. Co. v. Van Patten (04 111. 510), 117, 126, 129, 130. Chicago, etc., R. Co. v. Voelker (129 Fed. 522; 65 C. C. A. 65; 70 L. R. A. 264; 65 C. C. A. 226; reversing 116 Fed. 867), 24, 47, 233, 250, 267, 277, 295, 296, 298, 300, 326, 350, 354, 366, 452, 675, 682. Chicago, etc., R. Co. v. White (26 111. App. 586), 120. Chicago & A. R. Co. v. Wiggins Ferry Co. (108 U. S. 18; ?7 L. Ed. 636; 1 Sup. Ct. 614), 441. Cliicago, etc., R. Co. v. Wymore (40 Neb. 645; 58 N. W. il20), 192, 208, 209. Chisholra v. Georgia (2 Dall. 419, 475; 1 L. Ed. 440), 218. Cliivers v. Rogers (50 La. Ann. 57; 23 So. 100), 187. Choctaw, Oklahoma & Gulf R. R. Co. V. McDado, 191 U. S. 64, 68; 24 Sup. Ct. 102; 48 L. Ed. 207; affirming 52 C. C. A. 260; 114 Fed. 458), 352. Christian v. Erwin (125 111. 019; 17 N. E. Rep. 707; 22 111. App. 534), 119, 125, 132. Christian v. Macon, etc., Co. (120 Ga. 314; 47 S. E. Rep. 23), 111. TABLE OF CASES. XXV [References are to pagee.] Christian v. Van Tassel ( 12 Fed. Rep. 884, 890), 134. Chy Lung v. Frecnmn (92 U. S. 275, 280; 23 L. Ed. 550), 280. Cicero, etc., St. Ry. Co. v. Meix- ner (IGO 111. 320; 43 N. B. 823; 31 L. R. A. 331), 100. Cincinnati, etc., R. Co. v. Adam (Ky.) (13 S. W. Rep. 428), 173. Cincinnati, N. 0. & T. P. Ry. Co. V. Interstate Commerce Commis- sion (162 U. S. 184; 16 Sup. Ct. 700 40 L. Ed. 935), 46, 48, 271, 284 Cincinnati, etc., R. Co. v. Pratt (92 Ky. 233; 17 S. W. Rep. 484), 173. Cincinnati Packet Co. v. Bay (200 U. S. 179; 26 Sup. Ct. 208; 50 L Ed. 428), 249. Civilta, The (103 U. S. 699; 26 L. Ed. 509; 6 Ben. 309; Fed. Cas. No. 2775), 134. Claflin V. Houseman (93 U. S. 130, 139; 23 L. Ed. 833), 214, 218, 219, 221, 433, 438, 441. Clarendon, The (6 Sawy. 544; 4 Fed. Rep. bid), 134. Clark V. Southern Pacific Ry. Co, (175 Fed. 122), 36, 222. Clary V. Chicago, M. & St. P. Ry. Co. (141 Wis. 411; 123 N. W. 649), 163. Clements v. Railroad Co. (2 Q. B. 482), 192. Cleveland, C. C. & St. L. Ry. Co. V. Baker (91 Fed. 224), 356, 362. Cleveland, etc., Ry. Co. v. Curtis (134 111. App. 565), 215, 355, 364. Cleveland, etc., Ry. Co. v. Drumm (32 Ind. App. 547; 70 N. E. 286), 183. Cleveland, etc., Ry. Co. v. Max- well (59 111. App. 673), 100. Cleveland, etc., R. Co. v. Osborn (36 Ind. App. 34; 73 N. E. Rep. 285), 165. Cleveland, etc., R. Co. v. Osgood (36 Ind. App. 34; 70 N. E. Rep. 839; 34 Ind. App. 34; 73 N. E. 285, supra (165, 169, 176, 186, 209. Cleveland, etc., Ry. Co. v. Patter- son (37 Ind. App. 617; 78 N. E. Rep. 681), 142. Clinton v. Englebrecht ( 13 Wall. 434, 447; 20 L. Ed. 659), 219. Clore v. Mclntire (120 Ind. 2()2; 22 N. E. Rop. 128), 173, 179. Clyatt v. United States ( 197 U. S. 207; 25 Sup. Ct. 429; 49 L. Ed. 726), 318. Clyde V. R. & D. R. Co. (59 Fed. 394), 387. Cock, The Dr. (5 Mon. L. Mag, 303), 133. Coe V. Erroll (116 U. S. 517; 6 Sup. Ct. 475; 29 L. Ed. 715; affirming 69 N. H. 303), 49. Coffey ville, etc., Co. v. Carter (65 Kan. 565; 70 Pac. 635), 182, 183. Cohens v. Virginia, 6 Wheaton (264, 299; 5 L. Ed. 257), 277, 634. Colasurdo v. Central R. of New^ Jersey (180 Fed. 832), 59, 61, 63, 65, 74, 75, 348. Coley V. North Carolina R. Co. (128 N. C. 534; 39 S. E. 43), 303, 339. Coley V. North Carolina R. Co. (129 N. C. 422: 40 S. E. 195; 57 L. R. A. 817), 357. Collins V. Southern Ry. Co. (124 Ga. S53; 53 S. E.'Rep. 388), 111. Columbia, The (27 Fed. Rep. 238), 134. Columbus, etc., Co. v. Burke (37 Ind. App. 518; 77 N. E. Rep. 409), 142. XXVI TABLE OF CASES. [References are to pages.] Columbus R. Co. v. Dorsey (119 Ga. 363; 46 S. E. Rep. 635), 111. Comer v. Barfield (102 Ga. 489; 34 S. E. 90; 31 S. E. Rep. 90), 104, 110. Comer v. Shaw (98 Ga. 545; 25 S. E. Rep. 733), 110. Commercial Club v. Hilliker (20 Ind. App. 239; 50 K. E. 578), 179. Commonwealth v. Casey (43 Pa. Sup. Ct. Ap. 494), 382. Commonwealth v. Hart (11 Cush. 130), 293. Commonwealth v. Lehigh Valley R. Co. (Pa.) (17 Atl. 179), 48, 249. Conant v. Griffin (48 111. 410), 173, 179. Conley v. Cincinnati, etc., R. Co. (Ky.) (12 S. \V. Rpp. 704), 173*. Conlin v. City of Cliarleston ( 15 Rich. L. 201), 173. Connecticut, The (103 U. S. 710; 26 L. Ed. 467), 134. Connecticut, etc., Co. v. Xew York, etc., R. Co. (25 Conn. 265), 165. Connelly v. Union Sewer Pipe Co. (184'U. S. 540; 22 Sup. Ct. 431; 46 L. Ed. 679), 19. Connors v. Bunrlin^xton, etc., R. Co. (71 Iowa 490; 32 N. W. Rep. 465), 167. Connolly v. Ros.s ( 1 1 Fed. Rep. 342),' 134. Connor, Jn re (39 Col. 98, 101; 2 Am. Rep. 427), 220. Conrad v. Atchison. T. & S. F. Ry Co. (173 Fed. 527), 222, 223 Consolidated Store Co. v. Morgan (160 Ind. 241; 06 N. E. 096), 182. Continental. The (14 Wall. 345; 20 L. Ed. 801; reversing 8 Blatchf. 33; Fed. Cas. No. 3141), 133. Cook V. New York, etc., R. Co. ( 10 Hun. 420), 186. Cooley V. Philadelphia Port Ward- ens (12 How. 299; 13 L. Ed. 996), 29, 30, 92, 422, 445. Coon V. Utica, etc., R. Co. (5 N. Y. 492), 8. Cooper V. Ry. Co. (56 S. C. 91; 34 S. E. 16), 97. Cooper Mfg. Co. v. Ferguson (113 U. S. 727, 736, 737; 5 Sup. '.t. 739; 28 L. Ed. 1137), 280. C'orbett v. Oregon, etc., R. Co. (25 Utah 449; 71 Pac. 1065; su- pra), 184. Cound V. Atchison, T. & S. F. Ry. Co. (173 Fed. 527), 37, 430. County V. Pacific, etc., Co. (68 N. J. L. 273; 53 AH. Rep. 38')), 173. Coursen v. Ely (37 HI. 338), 129. Covell V. Heyman (111 U. S. 182; 4 Sup. Ct.SSS: 28 L. Ed. 390), 436. Covington v. Bryant ( 7 Bush. 248), 114. Covington, etc., Co. v. Kentucky (154 U. S. 204; 14 Sup. Ct. 1087; 38 L. Ed. 902; reversing 15 Ky. L. Rep. 320; 22 S. W. 851), 31, 48. Cowen V. Ray (47 C. C. A. 452; 108 Fed. 320), 208. Cox V. Railroad Co. ( 1 Ohio N. P. 213), 202. Cox V. Wilmington, etc., Ry. Co. (4 Penn. 102 (Del.) ; 5.3 Atl. 509), 182. Crandall v. Nevada (0 Wall. 35), 30. Crape v. Syracuse (183 N. Y. 395; 76 N. e". Rep. 465), 173. Crawford v. Xew York, etc., R. Co. (10 Am. and Eng. R. Cas. 166), 49, 233, 247, 258, 259, 267, 301, 348 364. TABLE OF CASES. [References Crowley v. Christensen (137 U. S. 85); 11 Sup. Ct. 13; 34 L. Ed. 620), 197. Crew V. St. Louis, etc., R. Co. (20 Fed. Rep. 87), 147. Cross V. Xorth Carolina ( 132 U. S. 131; 10 Sup. Ct. 47; 46 L. Ed. — ), 240. Crutcher v. Kentucky (141 U, S. 47; 11 Sup. Ct. 851; 35 L. Ed. G4f) ; reversing 89 Ky. 6 ; 12 S. W. 141). 257, 280. Crystal Springs Dist. Co. v. Cox (49 Fed 556; 1 C. C. A. 365), 388. Cumberland, etc., Co. v. Anderson (89 Miss. 732: 41 So. 263), 184. Cummings v. ZVIissouri (4 Wall. 277), 434. Cunningham v. ilagoon ( 18 Pick. 13), 676. Cypress, The (55 Fed. Rep. 333), 'l34. D. Dailey v. Southern Ry. Co. (Re- ported), 689. Daley v. Boston, etc., R. Co. ( 147 Mass 101; 16 N. E. Rep. 690), 175, 180. Daly V. New Jersey, etc., R. Co. (155 Mass. 1; 29 N. E. Rep. 507), 170. Daniel Ball, The (10 Wall. 557; 19 L. Ed. 999; Fed. Cas. No. 3564 ; reversing Brown, Admr., Cas. 193), 46, 246, 272, 273, 275, 280, 542, 624. Dare v. Wabash, etc., R. Co. ( 1 19 111. App. 256), 173. Dauntless, The (121 Fed. Rep. 420), 183. David Dowe, The ( 16 Fed. Rep. 154), 134. Davidson v. Hill (1901) (2 K. B. 606), 176. are to pages.] Davidson, etc., Co. v. Severson (109 Tenn. 572; 72 S. W. 967), 181. Davis v. Elmire Savings Bank (161 U. S. 275), 434. Davis V Mann, 414. Davis V. Southern Ry. Co. (147 N. C. 68; 60 S. E. 722), 48, 249. Dawson v. Chicago, R. I. & P. Ry. Co (114 Fed. 870), 304, 338. Daylesford, The (30 Fed. Rep. 6^33), 133, 135. Debs, In re (158 Fed. 564; af- firmed 15 Sup. Ct. 500; 39 L. Ed. 1092: 159 U. S. 251), 59. Debs, In re (158 U. S. 564; 15 Sup. Ct. 500; 39 L. Ed. 1092), 273, 281, 434. Defiance Water Co. v. Defiance (191 U. S. 194), 441. Delk V. St. Louis & S. F. R. Co. (220 U. S. 580; 31 Sup. Ct. 617; 55 L. Ed. 590; reversing 158 Fed. 931; 86 C. C. A. 95; 14 A. & K. Ann. Cas. 233), 233, 255, 259, 264, 268, 301, 312, 708. Deni v. Pennsylvania R. Co. (181 Pa. 525; 37 Atl. 558), 176. Dennick v. Central R. Co. (103 U. S. 11; 26 L. Ed. 439), 177. Denol V. Central Ry. Co. (119 Ga. 246; 46 S. E. Rep. 107), 111. Denver, etc., R. Co. v. Arrighi (129 P^ed. 347), 355. Denver & R. G. R. Co. v. Gannon (40 Colo. 195; 90 Pac. 853), 351. Denver, etc., R. Co. v. Gunning (33 Colo. 280; 80 Pac. 727), 179, 183. Denver, etc., R. Co. \. Warring (37 Colo. 122; 80 Pac. 305), 188. Denver, etc., R. Co. v. Woodward (4 Colo. 162), 166. XXVlll TABLE OF CASES. [References Deppe V. Railroad (36 Iowa 52), 17, 201. Detroit, T. & I. Ry. Co. v. State (82 Ohio St. GO; 91 N. E. SG'J), 241. Detroit, etc., R. Co. v. Van Stein- buTg (17 Mich. 99, 118), 142. Devaux v. Salvador (4 Adol. & El. 420), 13G. Devine v. Illinois Central R. Co. (15G 111. App. 3G9), 290. Dewberry v. Southern Ry. Co. ( 175 Fed. 307), 35. Dibble v. New York, etc., R. Co. (25 Barb. 183), 208. Dickinson v. Northeastern R. Co. 2 H. & C. 735; 33 L. J. Exch. 91; 9 L. T. (N. S.) 299; 12 W. R. 52), 171. Dickson v. United States ( 1 Brock — ), 387. Diller v. Cleveland, etc., R. Co. (34 Ind. App. 52; 72 N. E. Rep. 271), l(i5, 108, 171, 175, 187. Dillon V. Union Pacific R. Co. (3 Dill. 325), 147. Dillon V. Great Northern Ry. Co. (38 Mont. 485; 100 Pac. 960), 105, 108. Dithberner v. Chicago, etc., R. Co. (47 Wis. 138; 2 N. W. G!)), 12, 17. Dobson V. Whisenhant (101 N. C. G45), 702. Dod^'e V. Wolscy (18 How. 331), 434. JXihr V. Wisconsin Central Ry. Co. (144 Wis. 545; 129 N. W. 252), 1G2. Del ton V. South Eastern R. Co. (4 C. B. (N. S.) 296; 4 Jur. (N. S.) 711; 27 L. J. C. P. 227), 181. D]0. Louisville etc., R. Co. V. Sanders (86 Ky. 259; 5 S. W. Rep. 563). 175. TABLE OF CASES. xxxi: [References are to pages.] Louisville & N. R. Co. v. Scott (219 U. S. 209; 31 Sup. Ct. 171; 55 L. Ed. 183), 202, 368. Louisville, etc., R. Co. v. Summers (12r> Fed. 719), 179. Louisville, etc., R. Co. v. Thomp- son (113 Ga. 983; 39 S. E. Rep. 483), 111. Louisville, etc., R. Co. v. Thomp- son (107 Ind. 442; 8 N. E. Rep. 18; 9 N. E. Rep. 357), 166. Louisville, etc., R. Co. v. Tram- mell (93 Ala. 350; 9 S. 870), 179. Louisville & N. R. Co. v. United States (174 Fed. 1021; 98 C. C. A. 064), 370. Louisville & X. R. Co. v. United States (186 Fed. 280), 205, 372, 373. Louisville, etc., R. Co. v. Vancleave (23 Ky. L. 479; 63 S. W. 22), 249. Louisville, etc., R. Co. v. Walker (23 Ky. L. 453; 63 S. W. 20). Louisville & X. R. €o. v. Yarbor- ough (00 Fla. — ; 54 So. 462), 114. Lovier v. Central, etc., R. Co. (71 Ga. 222), 110. Low V. Rees Printing Co. (41 Xel). 127; 59 Pac. 302; 24 L. R. A. 702), 451. Lucas V. Xew York, etc., R. Co. (21 Barb. 245), 173. Luce V. Railroad Co. (07 Iowa, 75; 24 X. W. 600), 53. Ludd V. Wilkins (118 Ga. 525; 45 S. E. Rep. 429), 111. Luken v. Lake Shore & M. S. Ry. Co. (248 111. 377; 94 N. E. 175), 242, 250, 255, 313, 351. Lundin v. Kansas Pac. Ry. Co. (4 Colo. 433), 166. Lynch v. Xurdin (4 Eng. C. L. 422), 114, 115. Lyng v. Michigan (135 U. S. 161; "^10 Sup. Ct. 725; 34 L. Ed. 150; reversing 74 Mich. 570; 42 X. W. 139), 244, 280. Lyon V. Charleston & \V. C. Ry. ' (77 S. C. 328; 56 S. E. IS), 345, 350. Lyons v. Woodward (49 Me. 29), 165. Mo McAllister v. United States (141 U. S. 174, 184; 11 Sup. Ct. 949; 35 L. Ed. 693), 219. jMcAunick v. Mississippi, etc., R. Co. (20 Iowa 338), 12. McCIellan v. Chipman (164 U. S. 347), 434. :McCormick v. Market Bank (165 U. S. 538; 17 Sup. Ct. 433; 41 L. Ed. 817; affirming 162 111. 100; 44 X. E. 381), 302. McCray Case (196 U. S. 27), 427. McCutcheon v. Atlantic, etc., R. Co. (81 S. C. 71; 61 S. E. 1108), 249. McDaniels v. Royle, etc., Co. (110 Mo. App. 706; 85 S. W. Rep. 679), 171. McDonald v. Pittsburg, etc., R. Co. (144 Ind. 459; 43 X. E. Rep. 447), 171. McDonald v. Southern R. Co. (71 S. C. 352; 51 S. E. Rep. 138), 171. McDonnell v. Central R. Co. (118 Ga. 195; 44 S. E. Rep. 800; 118 Ga. 86; 44 S. E. Rep. 840), 113. McGarvey v. Detroit, T. & I. Ry. Co. (S3 Oliio St. 273; 94 X. E. 424), (Ohio Statute), 242, 296. McGuire v. Chicago, B. & 0. Ry. Co. (131 Iowa 340; 108 S. W. 902), 12, 22, 193, 368. Mclver v. Ragan (2 W'heat. 25, 29; 4 L. Ed.''l75), 281. McKeigue v. City of Janesvilie ( 68 Wis. 50; 31 X. W. 298), 188. TABLE OF CASES. [References are to pages.] McKering v. Pennsylvania R. Co. (G5 N. J. L. 57: 46 Atl. 715), 208. McO^I;'.lion v. City of New York ( 33 N. V. G42), W.). Mc^Iillan v. Spider Lake Sawmill & Lumber Co. (115 Wis. 332; 01 X. \V. 079), 177. :McMunay v. So. Car. R. R. Co. ( 1 McMullon 3S5; 30 Am. Dec. 2G8), 8. ;McXaniara v. Washington Tunnel Co. 35 App. 0. C. 230: 38 Wash. Law Rep. 343), 22, 27, 206, 368. McXiel, Ex parte (13 Wall. 236; 20 L. K(l. 024), 29, 439. McXiell V. Southern Ry. Co. (202 U. S. 543; 26 Sup. Ct. 722; 50 L. Ed. 1142), 46, 47. M :Mahel Comeaux, The (24 Fed. Rep. 490), 134. Macon, etc., Rv. Co. v. Anderson (121 Ga. 660; 49 S. E. Rep. 791), 113. Macon, etc., Ry. Co. v. Barnes (121 Ga. 443: 49 S. E. Rep. 282), 113. Macon, etc., R. Co. v. Davis (28 Ga. Ill; 18 Ga. 679). 100. 112. Macon, etc., R. Co. v. Denis ( 18 Ga. 084), 100. iMacon, etc., Ry. ('o. v. Holmes (103 Ga. 658; 30 S. E. 563, 565; 103 Ga. 655), 104, 108, 110. Macon, etc., R. Co. v. Johnson ( 38 Ga. 409, 431, 432), 100, 108, 110. Maeon. etc., Ry. Co. v. McLendon (119 Ga. 297; 46 S. E. Rep. 100), m. Macon, etc.. R. Co. v. Winn (26 Ga. 250; 19 Ga. 440), 100, 110, 112. ^fadison, etc., R. Co. v. Bacon (6 Ind. 205), 10, 166. Maharajah, The (40 Fed. Rep. 784), 139. Maine v. Chicago, B. & 0. R. Co. 109 Iowa, 26(); 70 N. W. 630; 80 X. W. 315), 191, 19.-). Majestic, The (166 U. S. 375; 17 Sup. Ct. 597; 41 L. Ed. 1039), 387. Majorano v. Baltimore & 0. R. Co. (216 Pa. 402; 65 Atl. 1077), 177. Malone v. Railway Co. (05 Iowa 417; 21 N. W. 756), 53, 201. Malott V. Hood (201 111. 202; 66 X. E. 247; affirming 99 111. 300), 290, 292, 351. Malott V. Hood ( 99 111. App. 360 ; affirmed 201 111. 202; 66 X. E. 247), 303. Malott V. Shimer (153 Ind. 35; 54 N. E. Rep. 101), 100, 176. ^laney v. Cliicago, etc., R. Co. (49 111.' App. 105), 208. Manitoba, Tiie (122 U. S. 97; 7 Sup. Ct. Rep. 1158; 90' L. Ed. 1U9.J), 134. IMansfielu v. Richardson (118 Ga. 250; 45 S. E. 269), 111. March v. Walker (48 Tex. 375), ISO. Maria :>rartin, The (12 Wall. 31; 20 L. Ed. 251; affirming 'J I5is.s. 41; Fed. Cas. Xo. 9079), 134. Mariarna Flora, The (11 Wheat. 1: 6 L. Ed. 405; affirming 3 Mason 110: Fed. Cas. Xo. 9080), 138. Marino v. Lelimaier (173 X*. Y. 530; 66 X. E. 572; 01 L. R. A. 811), 393. ]\Larsh v. South Carolina, etc.. R. Co. (50 (;a. 274), 14. Marshall v. Wabash R. Co. (46 Fed. Rep. 209). 171. Martin v. Butte (34 Mont. 281; 80 Pac. Rep. 204), 178. TABLE OF CASES. xli [References are to pages.] Martin v. Hunter's Leasee ( 1 Wheat. 304, 328-333; 4 L. Ed. 97), 217, 439. Martin v. Wallace (40 Ga. 52), 166. Mary Ida, The (20 Fed. Rop. 741), 13^4. Mary Patten, The (2 Lou. 190), 135. Mason v. Railroad Co. (Ill X. C. 482; IG S. E. 098), 346, 349. Mason v. Stoam Tug (3 Fed. Rep. 404), 134. Matthews, //; re (122 Fed. 248), 435. Mattock V. Willianisville, etc., II. Co. (Mo.), (95 S. W. Rep. -849), 172. Max ilorris. The (24 Fed. Rep. 800 (affirmed 28 Fed. Rep. 881), 137 U. S. 1; 11 Sup. Ct. Rep. 29; 34 L. Ed. 586, affirming 24 Fed. Rep. 860 & 28 Fed. Rep. 881-) 133, 134, 136, 138. Mayor, etc., v. Dodd (58 Ga. 238), 110, 112. Mayor, etc. v. Third Ave. R. Co. ("^117 X. Y. 404, 60G; 22 X. E. 755), 289. Mecer Grocery Co. v. Atlantic Coast Line R. Co., 431. Meeks v. Atlanta, etc., Ry. Co. (122 Ga. 206; 50 S. e" Rep. 99), 113. Meesel v. Lynn, etc., R. Co. (8 Allen 234), 142. Memphis, etc., Co. v. Yager, etc., Co. (10 Fed. Rep. 395), 134. Mendon v. Xew Y'ork, X". H. & H. R. Co., 426. Merkle v. Bennington Tp. ( 58 Mich. 156; 24 X. W. 2^8), 188. Metz V. Chicago, B. & 0. R. Co. (88 Xeb. 459; 129 X. W. 994), 23. Mexican Cent. R. Co. v. Glover (107 Fed. 356; 46 C. C. A. 334), C. :\rexican Cent. R. Co. v. Knox (114 Fed. 73; 52 C. C. A. 21), 6. lyiexican Cent. R. Co. v. Sprague 114 Fed. 544; 52 C. C. A. 318), 6. Michigan TTeadling & Hoop Co. v. Wheeler (141 Fed. 61; 72 C. C. A. 71), 358. Mires v. St. Louis & S. F. Ry. Co. (134 Mo. App. 379; 114 S. W. 1052), 48, 249. Missouri Pac. Ry. Co. v. Barber (44 Kan. 612; 24 Pac. Rep. 969), 173. ]\Ii&souri, etc., Co. v. Brantley (26 Tex. Civ. Ani). 11; 02 S. W. 94). Missouri Pac. Ry. Co. v. Brink- meir (Kan.), (93 Pac. 621; 50 Am. & Eng. R. Cas. 441), 326. Missouri Pac. Ry. v. Brinkmeior 77 Kan. 14; 93'Pac. 621; 50 Am. & Eng. R. Cas. 441), 215, 313, 304, 367. Missouri Pacific Ry. Co. v. Castle (172 Fed. 841),'23. Missouri Ry. Co. v. Elliott (109 Fed. 96), '676. Missouri Pac. Ry. Co. v. Fitz- gerald (160 U. S. 556; 40 L. Ed. 336; 16 Sup. Ct. 389), 441. Missouri, etc., R. Co. v. Freeman (Tex. Civ. App.), (73 S. W. Rep. 542), 171. Missouri, K. & T. Ry. Co. v. Haber (109 U. S. 613; 18 Sup. Ct. 488; 42 L. Ed. 878; affirming 56 Kan. 094; 44 Pac. 632), 33, 3S3. Missouri, K. & T. Ry. Co. v. Haw- ley (Tex. Civ. App.), (123 S. W. 726), 233, 224. Missouri, Pacific R. Co. v. Kennet (Kan.) 99 Pac. 263), 285. ilissouri Pacific Ry. Co. v. Lara- bee (209 U. S. 2.11; 28 Sup. Ct. 485; 52 L. Ed. 778), 240. xlii TABLE OF CASES. [References Missouri. Tacific R. Co. v. ^Mackoy (33 Kan. 298; 6 Tac. 291), 12. Missouri, etc., R. Co. v. Mack(>y (127 U. S. 205; 32 L. Ed. 107; 8 Sup. Ct. 1101, affirming 33 Kan. 298; 6 Pac. 291), 12, 17, 19, 22, 54, 194, 21/2. ilissouri, K. & T. R. Co. v. :\Ic- daris (CO Kan. 151; 55 Pac. 875), 19, 54. :MissoiMi, R. & T. Ry. Co. v. New Era Milling Co. (80 Kan. 141; 101 Pac. 1011), 119. Mickelson v. Truesdale (63 Minn. 137; 05 X. W. 200), 13. Miller v. Illinois Central R. Co. (IGS Fed. 982), 222. Milwaukee Ry. Co. v. Kellog (94 U. S. 4'o9), 075. [Minneapolis 6L- St. L. Ry. Co. v. Ilerrick (127 U. S. 210; 8 Sup. Ct. 1170; 32 L. Ed. 109; affirm- ing 31 ilinn. 11; 47 Am. Rep. 771; 16 X. W. 413), 12, 17, 22, 194, 202. Minnesota, Iron €o. v. Kline ( 199 U. S. 593; 26 Sup. Ct. 159; 50 L. Ed. 322; affirming 93 Minn. 63), 19, 54. ilississippi R. Co. v. Illinois Cent. R. Co. (207 U. S. 335, 343; 27 Sup. Ct. 90; 51 L. Ed. 209; affirming 70 C. C. A. 617; 138 Fed. 377), 21, 422, 444. Mitchell V. Crosswcller (13 C. 13. 235), 78. !Mix V. Ilamburg, etc., Co. (85 X. Y. App. Div. 475; 83 X. Y. St. 322), 182. iL J. Cummings, The (18 Fed. Rep. 178), 134. Mobile, etc., R. Co. v. Bromberg (141 Ala. 258: 37 So. .395), 49, 215, 259, 20.3, 292, 349, 350, 355. 356, 364, 3(>0, 368, Mobile, County v. Kimball (102 U. S. 091; 26 L. F.d. 238; af- firming 3 Woods 555), 29. .Tre to pages.] ^klobile, J. & K. C. R. Co. v. Tur- nipseed (219 U. S. 35; 31 Sup. Ct. 136; 55 L. Ed. 78; affirm- ing 91 Miss 273; 46 So. 360; 124 Am. St. 679), 14, 202. Monarch, The (1 Wm. Rob. 21), 133. ^londau v. X'^ew York, X". H. & II. R. -Co. (32 Sup. Ct. 109; re- versing Hoxie V. X. Y., etc., R. Co., 82 Conn. 352; 73 Atl. 754; ed. ilondau v. X. Y., etc., R. Co., 82 Conn. 373; 73 Atl. 762), 22, 23, 193, 202, 215, 216, 221. Monticello, The ( 15 Fed. Rep. 474), 134. Moody V. Pacific R. -Co. (68 Mo. 470), 175. I\Ioody V. Peterson (11 III. App. ISO), 120, 127, 132. :\Ioore V. Dublin Cotton :\Iills (127 Ga. 009; 56 S. E. Rep. 839), 112. [Nloore v. Gainsville Midland Ry. Co. (9 Ga. App. — ; 71 S. E. 808), 100. IMoore v. C. L. King Mfg. -Co. ( 124 Ga. 570; 53 S. E. Rep. 107), 111. Morgan v. Kridge Co. (5 Dill. 96), 147. ilorgan v. Louisiana ('118 U. S. 455; Sup. Ct. 1114; 30 L. Ed. 237; affirming 30 La. Ann. 000), 29. ^Morgan v. Southern Pac. R. Co. (95 Cal. 510; 30 Pac. Rep. 603), 180. Morier v. St. Paul, M. & M. R. Co. (31 Minn. 351; 17 X. W. 952), 77. Morris V. Duluth, S. S. & A. Ry. to. (108 Fed. 747; 47 C. C. A. 601), 350, 357. Morrison v. Baird (10 R. p. 038), 451. :Moses Taylor, The (4 Wall. 428), 438, 439. TABLE OF CASES. xliii [References are to pages.] Mottley V. Louisville, etc., Tt. Co. (150 Fed. 400), 318. Moyse v. Northern Pacific Ry. Co. (41 Mont. 272; 108 Pac. 1002), 70. Mt. Adams Ry. Co. v. Lowery (74 Fed. 403), 070. Muhl V. Southern M. R. Co. (10 Ohio St. 272), 171. :v,Iulhall V. Fallon (176 Mass. 200: 57 X. E. 386), 176. Murphy v. New York, etc., R. Co. (30 Conn. 184), 167. Murray v. Chicago & N. W. Ry. Co. (62 Fed. 24), 213, 441. ilurray v. So. Car. R. Co. ( 1 :McMu1. 385; 36 Am. Dec. 268), 9. Murray v. Usher (117 N. Y. 542; 23 N. E. 564; 46 Am. 404), 209. Mutual L. Ins. Co. v. Prewitt (31 Ky. L. Rep. 1319: 105 S. W. 4(;3), 96. !Mynning v. Detroit, etc., Co. (59 Mich. 257; 20 N. W. 514), 180. Myrtle v. Nevada, C. & 0. Ry. Co. (137 Fed. 193), 302, 366. Mystic, The (44 Fed. Rep. 399), 'l34. N Narramore v. Cleveland, C. C. & St. L. Ry. Co. (96 Fed. 298), 90, 202, 675. Nashville, etc., R. Co. v. Alabama (128 U. S. 96; 9 Sup. Ct. 28; 32 L. Ed. 352 ; affirming 83 Ala. 71; 3 So. 702), 32, 36. Nashville, etc., R. Co. v. Carroll, 6 Ileisk. 347), 113, 141. Nashville, etc., R. Co. v. Prince (2 Ileisk. (Tenn.) 580), 167. Nashville, etc., R. Co. v. Wheless (10 Lea, 741; 43 Am. Rep. 317), 113, 141. Natchez, etc.. R. Co. v. Cook (03 Miss. 38), 1G5. Nathan Hale, Tlie (48 Fed. Rep. 7 00), 134. Naylor v. Pittsburg, etc., R. Co. (4 Ohio C. C. (N. S.) 437), 169. Neal V, Delaware (103 U. S. 370; 26 L. Ed. 567), 441. Neal V. St. Louis, I. M. & S. R. Co. (71 Ark. 445; 78 S. W. 220), 310, 311, 365. Neal V. Wilmington, etc., Co. (3 Penn. (DeL) 467), 182. Neilson v. Brown (13 R. I. 651), 166. Nelson v. Galveston, etc., Ry. Co. (78 Tex. 621; 14 S. W."^ Rep. 1021), 172. New Jersey Exp. Co. v. Nichols (33 N. J. L. 435), 98. New Orleans v. Benjamin (153 U. S. 411; 38 L. Ed. 764; 14 Slip. Ct. 905), 441. New Orleans Cotton Exchange v. Cincinnati, etc., R. Co. (2 In- terstate Com. 289), 48, 249. Newport Ncavs & N. V. Co. v. United States (61 Fed. 488; 9 C. C. A. 579), 387. New Y^ork, The (175 U. S. 187; 20 Sup. Ct. Rep. 67; 44 L. Ed. 126; reversing 27 C. C. A. 154; 54 U. S. App. 248 ; 82 Fed. Rep. 819), 134. New York, etc., R. Co. v. New York (165 U. S. 028; 17 Sup. ( t. 418; 41 L. Ed. 853; affirm- ing 142 N. Y. 646; 37 N. E. 568), 32. Nicliolas V. Chesapeake, etc., TXy. Co. (127 Ky. 310; 105 S. W. 481; 32 Ky. L. Rep. 270), 215, 304. Nichols V. Tanner (117 Ca. 489; 43 S. E. Rep. 489), 113. Nix V. Southern Ry. Co. (4 Ga. App. 331; 01 S. 'e. Rep. 292), 113. XilV TABLE OF CASES. [References are to pages.] Norfolk & W. Ey. Co. v. Dixie (111 Va. 813; 69 S. E. HUG), 20-2, 368. Xorfolk & W. Ry. Co. v. Hazelrigg (179 Fed. 551), 313, 350. 357, 368, 373. Xorfolk & W. E. Co. v. Hazelrigg (184 Fed. 828: 107 C. C. A. 66), 223, 356, 358. Xorfolk, etc.. Ry. Co. v. Pennsyl- vania (136 U. S. 114, 115, lis, I 120; 10 Sup. Ct. 958; 34 L. Ed. j 394), 48, 280. I Xorfolk, etc., Ry. Co. v. Perrow (101 Va. 345; 43 S. E. Rep. 614), 113. Xorfolk & W. Ry. Co. v. U. S. (191 Fed. 302), 295, 372. Xorfolk & W. Ry. Co. v. United States (reported), 699. Xorfolk & W. R. -Co. v. United States (177 Fed. 623; 101 C. C. A. 249), 250, 296, 298, 303, 313, 372, 708. Xortli Chicago, etc. R. Co. v. Monka (4 111. App. 064), 126. Xorthern Bank v. Porter Tp. (110 U. S. 608), 634. Xortliern Pac. R. Co. v. Elli.son (3 Wai^li. 225; 28 Pac. Rep. 233), 173. Xorthern Queen, The (117 Fed. Rep. 9U6), 165. Xorth Pennsylv.Tnia R. Co. v. Ilcileman (49 Pa. St. 60), 142. Xorth Star, The (106 U. S. 17; 1 Sup. Ct. Rep. 41; affirming 8 Blatchf. 209; Fed. Cas. Xo. 10331), 134. Nult V. Knut (200 U. S. 12; 26 Sup. Ct. 216; 50 L. Ed. 348; r.flirming 83 Miss. 365; 35 So. 086; 102 Am. St. 452; 84 Miss. 4(i5; 36 So. 689; reversing 84 Miss. 465; 36 So. 689), 302. O-Brien v. Cliicago & N. W. Ry. (116 Fed. 502), 17, 418. O'Brien v. Star Line Limited 1 1 Butterworth'.'i Workmen's Com- ])ensation Cases, 177, 181), 77. 0"Callaghan v. Bode (84 Cal. 480; 24 Pac. 269), 180. O'Connell v. Leary (145 Ma=;s. 311), 632. Ohio, etc., R. Co. v. Eaves (42 111. 288), 126. Oliio, etc., R. Co. v. Porter ('.)2 111. 437), 121. Ohio, etc., R. Co. v. Slionefelt (47 111. 497), 120, 127, 129. Ohio, etc., R. Co. v. Tindall (13 Ind. 366), 166. Oldfield v. Xew York, etc., R. Co. (14 N. Y. 310), 169, 181. Olsen V. Nixon (61 X. J. L. 671; 40 Atl. 094; 4 Am. & Eng. Neg. Cases, 515) , 11. Olson V. Flavol (34 Fed. Rep. 477), 134. Olympia, The (61 Fed. 120; 9 "c. C. A. 393), 388. Omaha & C. B. St. Ry. Co. v. Intcrstato Com. Com. (191 Fed. 40), 44. Oratava, Tlie (5 ^Mon. L. ^lag. 45, 3biiis V. Shelby Taxing I)i>d. 497," 492), 233/234, 238, 250, 251, 267. Southern Ry. Co. v. United States (222 U. *S. 20; 32 Sup. Ct. 2; 56 L. Ed. — ; affirming 164 Fed. 347), 44, 66, 234, 236, 252, 255, 311. Southern Ry. Co. v. Wesley (9 Ga. App. — )', 71 S. E. 11), 10(i. Southwestern R. Co. v. Johnson (00 Ga. 067), 108, 112. Southwestein, etc., R. Co. v. Paulk (24 Ga. 536), 166. Spain V. St. Louis, etc., R. Co. (151 Fed. 522), 234. Spain V. St. Louis, etc., R. Co. (151 Fed. 608), 24. Sprague v. Wisconsin Central R. Co. (104 Minn. 58; 110 N. W. 104), 348, 356, 361, 364. Springfield, etc., Ry. Co. v. De- Camp (11 111. App. 475), 127. Standard, etc., Co. v. ]\lunsey (33 Tex. Civ. App. 416; 76 S. W. 931), 182. Starin v. New York (115 U. S. 248; 6 Sup. Ct. 28; 29 L. Ed. 388; affirming 21 Fed. 593), 306. State V. Adams Exp. Co. ( 170 Ind. 138; 85 N. E. 337, 936), 303. State V. Baltimore, etc., Ry. Co. (24 Md. 84), 180. State V. Baltimore, etc., R. Co. (36 Fed. 055), 191. State V. Chicago, M. & St. P. Ry. Co. (40 Minn. 207; 41 N. W. 1047), 48, 447. lii TABLE OF CASES. [References State V. Chicago, M. & St. P. Ry. Co. (!3G Wis. 407; 117 N. W. 686; 19 L. R. A. (N. S.) 320), 86, 384, 447. State Freight Tax Case ( 15 Wall. 232, 275, 280; 21 L. Ed. 14G), 92, 280. State V. Kansas City, F. S. & M. R. Co. (70 Mo. App. 034), 375. State V. Lauer (55 X. J. L. 205; 26 Atl. 180; 20 L. R. A. 61), 98. State V. Loomis (115 Mo. 807), 19. State V. Missouri Pacific Ry. Co. (222 Mo. 658; 111 S. W. 500), 303, 384, 423, 446. State V. Northern Pacific Ry. Co. (36 Mont. 582; 93 Pac. 945; 15 L. R. A. (N. S.) 134), 384. State V. Northern Pacific R. Co. (53 Wash. 073; 102 Pac. 876), 384. State V. Pittsburg, etc., R. Co. (OS Ohio St. 9; 67 N. E. 93; 04 L. R. A. 405), 192. State V. Soale (30 Ind. App. 73; 74 N. E. Rep. Ill), 172. State V. Texas & N. O. R. Co. (Tex. Civ. App.), (124 S. W. 984), 384. Staunton Coal Co. v. Fischer (119 111. Aiip. 284), 173. Steam Dredge No. 1 (134 Fed. Rep. )01; 67 C. C. A. 67; 69 L. R. A. 293), (denying the ap- plicaliility of the doctrine of Davies v.'iSIann) 10 Mcs. & Wils. 546), 134. Steinliouser v. Savannah, etc., R. Co. (118 Ca. 195; 44 S. E. Rep. 800), 113. Sternplcs v. .Metropolitan St. Ry. Co. (174 N. Y. 512; 06 N. E. 1117). 183, 184. Stephen Morgan, The (94 U. S. 599; 23 L. Ed. 930), 134. are to pages.] Stephens v. American, etc., Co. (38 Ind. App. 414; 78 N. E. Rop. 335), 142. Stepliens v. Naslivillc, etc., R. Co. (10 Lea, 418), 209. Sterling. The (100 U. S. 047: 1 Sup. Ct. Hep. 89: 27 L. Ed. 98), 134. Sternberg v. Cape Fear & S. V. R. Co. (29 S. C. 510; 7 S. E. 830), 48, 249. Stewart v. Seaboard Air Line Ry. (115 Ga. 624; 41 S. E. Rep. 981), 113. Stewart v. Terre Haute, etc., R. Co. (103 Ind. 44; 2 S. E. Rep. 208), 173. St. Louis, etc., R. Co. v. Bhick (79 Ark. 179; 95 S. W. Rep. 155), 178. St. Louis, etc., Ry. Co. v. Bowles (Tex. Civ. App.), (72 S. W. Rep. 451), ISl. St. Louis, etc., R. Co. v. Cleere (Ark.), (88 S. W. 995), 183. St. Louis, M. & S. Ry. Co. v. Con- ley (187 Fed. 949), 4, 22, 38. St. Louis, etc., R. Co. v. Delk ( 153 Fed. 931; 86 C. C. A. 95; 14 A. & E. Ann. Cas. 233; reversed in 220 U. S. 578; 31 Sup. Ct. 017; 5.-) L. Ed. — ), 57. 233, 250, 251, 264, 268, 301, 327, 339, 351, 033. St. Lnui>, etc.. Ry. Co. v. Ilaist (71 Ark. 258; 72 S. W. «!I3), 184. St. Louis S. W. Ry. Co. v. Harvey (144 Fed. 806), 77. St. Tvouis, I. :M. & S. Ry. Co. v. Hestorly (Ark.), (135 S. W. 874), 211, 255. St. Louis, etc., R. Co. v. :\Ianly (58 111. .300), 129. St. Louis, etc., R. Co. v. Mathiaii (Ark.), (91 S. W. 763), 184. TABLE OF CASES. liii [References are to pages.] St. Louis, etc., R. Co. v. ilatthevvs (165 U. S. 1; 41 L. Ed. Gil; 17 Sup. Ct. 243; affirming 121 :\ro. 208; 24 S. W. 5!)l'; 25 L. R. A. 161), 12. St. Louis Cordage Co. v. IMiller (126 Fed. 495), 351. St. Louis, I. M. & S. Ry. Co. v. Xeal (71 Ark. 445; 78 S. W. 220), 350. St. Louis, I. M. & S. R. Co. v. Keal (83 Ark. 591; 98 S. W. 958; affirmed 210 U. S. 281; 28 Sup. Ct. G16; 52 L. Ed. 1061), 232, 233, 299, 302, 310, 3615, 366. St. Louis, etc., R. Co. v. Paul ( 173 U. S. 404; 43 L. Ed. 746; 1-9 Sup. Ct. 419; affirming 64 Ark. S3; 37 L. R. A. 504; 62 Am. St. 154; 40 S. W. 705). 13, 19. St. Louis & S. F. Ry. Co. v. State (87 Ark. 562; 113 S. W. 203), 48, 2'49. St. Louis, etc., R. Co. v. Taylor (210 U. S. 281; 28 Sup. " Ct. 616; 52 L. Ed. 1061), 38, 215, 232, 233, 234, 235, 237, 251, 2»9, 300, 302, 310, 341, 364, 427, 544, 549, 582, 584, C20, 625, 633, 634, 635, 708, 709. St. T-X)uis, etc., R. Co. v. Todd (36 III. 409), 129, 130. St. Louis S. W. Ry. Co. v. United States (183 Fed^ 770), 370, 372, 375. St. Louis, etc., Ry. Co. v. Vickors (122 U. S. 360), 434. St. Louis, I. M. & S. Ry. Co. v. York (92 Ark. 554; 123 S. W. 376), 313, 356, 361, 364. Stockmann v. Terre Haute, etc., R. Co. (15 Mo. App. 503), 188. Stone V. Railroad -Co. (171 Ma^s. 536), 675. Stratton v. Morris (89 Tenn. 497), 17. Stroble v. Railroad Co. (71 Iowa, 555; 31 N. W. 63), 53. Strode v. St. Louis Transit Co. (Mo.), (87 S. W. 970), 208. Stuart V. Evans (31 VV. R. 706), 5, 451. Stucke V. Orleans R. Co. (50 La, Ann. 188; 23 So. 342), 11. Sturgcs V. Crowninahield (4 Wheat. 122), 434. Sturgiss V. Atlantic, etc., R. Co. (SO S. C. 167; 60 S. E. 939; 61 S. E. 261), 193. Sullivan v. Union Pac. Ry. Co. (2 Fed. Rep. 447 : 1 McCrarv, 301 ) , 165. Sunnyside, The (91 U. S. 208; 23 L. Ed. 302; reversing Rrown, Ad. Cas. 227; Fed. Cas. No. 13, 620), 133. Suttle V. Choctaw, O. & G. R. Co. (144 Fed. 668; 75 C. C. A. 470), 296, 356, 357, 359. Swift & Co. V. Johnson (138 Fed. Rep. 867), 171. Swoboda v. LTnion Pacific R. Co. (87 Neb. 200; 27 N. W. 215), 23, 84. Syracuse, The (18 Fed. Rep. 828), 134. Sxymanski v. Blumenthal (3 Pen- newill (Del.), 558; 52 Atl. 347), 176. T Taggert v. Republic Iron & Steel Co. (141 Fed. 910), 295, 300. Tanor v. Municipal, etc., Co. (84 N. Y. Stat. 1053: 88 App. Div. 251), 169. Taylor's. Case ( see St. Tx)uis, etc., R. -Co. V. Taylor). Taylor v. Boston, etc., R. Co. ( 1S6 ^lass. 390; 74 N. E. 591), 250, 263, 273, 303. Taylor v. Caery (20 How. 595; 15 L. Ed. 1028), 435. liv TABLE OF CASES. [References are to pages.] Taylor v. Cranberry, etc., Co. (04 N. €. 525), 174." Taylor v. Prairie Peeble Phospliate Co. (Fla.), (54 S. 904), 291. Taylor v. San Antonio, etc., Co. (15 Tex. Civ. App. 344; m S. W. Rep. 674), 172. Taylor v. Southern Ry. Co. (17S Fed. 380), ,35, 37. Taylor v. United States (3 How. i97: 11 L. Ed. 559), 286. Tays V. Echer (6 Tex. Civ. App. isS: 24 S. W. -9.54), 388. Teal V. Fulton (12 How. 292), 436, 437. Tennessee v. Davis ( 100 U. S. 257). 434. lerre Haute, etc., R. Co. v. Voelker (31 111. App. 314), 121, 127. Teutonia, The (23 Wall. 77; 23 L. Ed. 44), 133. Texarkana, etc., R. Co. v. Fugier ( 16 Tex. Ct. 724; 95 S. W. 563), 184. Texas & P. R. Co. v. Carlin (111 Fed. 777; 1&9 U. S. 354; 23 Sup. Ct. 585; 47 L. Ed. 849), 56. Texas, etc., R. Co. v. Green (15 Tex. Ct. 133; 95 S. W. 694), 183, 184. Texas & Pacific Ry. Co. v. Inter- state Commerce Commission 162 U. S. 197; 16 Sup. Ct. 666; 40 L. Ed. 940; reversing 4 In- ter.state Com. Rep. 408; 6 C. i\ A. 653; 20 U. S. App. 1; 57 Fed. 948), 274, 276. Texas, etc., Ry. Co. v. Robertson 82 Tex. 657; 17 S. W. Rep. 1041), 172. Texas k X. 0. R. Co. v. Sabiiie Transportation Co. (121 S> W. 250). 48. Texas & 1'. Ry. Co. v. Swearingcn (122 Fed. 193), 35(1. Thelliison v. Wooclford (4 Ves. 227; 11 Ve.s. 112), 172. Tliird St. R. Co. v. Lewis (173 U. S. 457; 19 Sup. Ct. 451; 43 L. Ed. 766), 305. Tliomas v. C4eorgia, etc., R. Co. (38 Ga. 222), 289. '1 honias v. (^uarterman ( 18 Q. B. 693), 5, 451. Thomas v. Union Pac. Ry. Co. ( 1 Utah, 132), 165. T]!omp?on v. Central R. Co. (54 Ga. 509), 104. Tliompson v. Ft. Worth, etc., R. Co. (97 Tex. 590; 80 S. W. 990), 209. TliOmpson v. Wabash Ry. Co. ( 1S4 Fed. 554-) , 176. Thornburgh v. American, etc., Co. 141 Ind. 443; 40 N. E. Rep. 10U2), 171, 172. Tift v. Jones (78 Ga. 700; 3 S. E. Rep. 399), 110. 'J 11 ley \. Hudson^ etc., Co. (29 N. Y. 252; 24 N. Y. 471), 169, ISO. To.led-D R. Co. v. Bartley ( 172 Fed. &2), 675. ToJedo, etc., R. Co. v. Cline ( 135 111. 41; 25 X. E. 846; 31 111. App. 503), 119, 120, 121, 125, 127. Toledo, St. E. & W. R. Co. v. (iordon (177 Fed. 152), 356. Toledo, etc., Ry. Co. v. McGinnis (71 111. 346), 130. Toledo, etc., Ry. Co. v. O'Connor (77 III. 391 ), 130, 132. Toledo, etc., Ry. Co. v. Spencer (66 111. 528), 129. Transportation Co. v. Parkor-burg (107 U. S. 691: 2 Sup. Ct. 732; 27 L. Ed. 584), 29. Trott v. Birmingliani R. Co. i 1-14 Ala. 383; 39^ So. Rep. 716), 179. Trotta V. Johnson (121 Ky. 827: 90 S. W. 540), 170. Troxler v. Southern Ry. Co. (124 X. C. 189; 32 S. E. 550), 349. TAni.E OF CASES. Iv [References are to pages.] Troxler v. Southern Ey. Co. (124 N. C. 191; 32 S. E. 550; 44 L. R. A. 312; 70 Am. St. 580), 340. Tsmura v. Groat Nortliern Ry. Co. 58 Wash. 310; 108 Pac. 774), 04, 74, 348. Tucker v. Central Ry. Co. (122 Ga. 387; 50 S. E. Rep. 128), 113. Tullis V. Lake Eric, etc., R. Co. (175 U. S. 349; 20 Sup. Ct. 136; 44 L. Ed. 192; 105 Fed. 554), 12, 13, 19, 22. Turley v. Atlanta, etc., R. Co. (127 Ga. 594; 5G S. E. Rep. 74S), 111. Turrettin v. Chicago, St. V., M. & 0. R. Co. (95 Minn. 408; 104 N. W. 225), 348, 356, 361, 364. Tynan v. Walker (35 Cal. 034; 95 Am. Dec. 152), 282. U Union Pacific Ry. Co. v. Rollins (5 Ivans. 167)', 99, 100. Union Bridge Co. v. United States (204 U. S. 364), 234. Union, etc., Co. v. Kollaher (12 111. App. 400), 120, 126, 132. Union, etc., Co. v. Monaghan ( 13 111. App. 148), 121, 132. Union Pac. R. Co. v. Roeser (09 Neb. 62; 95 N. W. Rep. 68), 17S. Union Pacific R. Co. v. Brady (161 Fed. 719; 88 C. C. A. 1579), 357. Union Pacific R. Co. v. Brady (161 Fed. 719), 356. Union Ry., etc., Co. v. Shacklet (119 111. 232; 10 N. E. 896), 180. Union Stock Yards Co. v. United States (169 Fed. 404), 49. United States v. A., T. & S. F. R. R. (D. C), (150 Fed. Rep. 442), 337. United States v. Atchison, T. & S. F. Ry. Co. (160 Fed. 160), 387. United States v. Atchison, etc., R. Co. (167 Fed. 096; Appendix G.), 287, 294, 297, 298, ;^>09, 310, ;J27, 331, 334, 33.1, 372, 584, 674. United States v. Atchison, T. & S. F. Ry. Co. (Appendix G), 292, 295, 296, 297, 299. United States v. Atchison, T. & S. F. Ry. Co. (Appendix G.), 331. United States v. Atchison, etc., Ey. Co. (150 Fed. 442), 319, 326. United States v. Atcliison, T. & S. F. R. Co. (163 Fed. 517; 90 C. C. A. 327), 30!), 312, 313, 620, 625. United States v. Atchison, T. &. S. F. Ry. Co. (reported), 550, 580, 065. United States v. Atchison, T. & S. F. Ry. Co. (Kent's Index-Digest, 125)', 705. United States v. Atcliison, etc., R. Co. (see Appendix G), 285. United States v. Atlantic Coast Line R. Co. (153 Fed. 918), 371, 372. United States v. Atlantic Coast Line R. Co. (reported), 370, 371, 623. United States v. Atlantic Coast Line R. Co. (168 Fed. 175), 370. L'nited States v. Atlantic Coast Line R. Co. (182 Fed. 284), 374, 375. United States v. Atlantic Coast Line R. Co. (Appendix G), 375. United States v. Atlantic Coast Line R. Co. (173 Fed. 764; 98 C. C. A. 110), 388. United States v. Atlantic, etc., Ry. Co. (153 Fed. 918), 234, 237, 238, 337, 351, 355, 308, 370. United States v. Atlantic Coast Line R. Co. (see Appendix G), 292, 303, 307, 309. Ivi TABLE OF CASES. [References are to pages.] United States v. Atlantic Coast Line R. Co. (Appendix G), 349. United States v. Atlantic Coast Line R. Co. (— Vlh\. 77), 305. United States v. Atlantic, etc., R. Co. (153 Fed. 918), 293 309, 334. United States v. Atlantic Coast Line R. Co. (168 Fed. 175), (de- cided Feb. 24, 1909), (Appendix G, p. 372), 246, 252. United States v. Baltimore & 0. Ry. Co. (170 Fed. 456), 234, 238. 251, 297, 372. United States v. Baltimore & O. R. Co. (26 App. I). C. 851), 370, 454. United States v. Baltimore, etc., R. Co. (Appendix G), 309, 331, 335. United States v. Baltimore & 0. S. W. R. Co. (159 Fed. 33; 80 C. C. A. 223), 370, 372, 378, 619, 024, 031. Vnited States v. Baltimore, etc., R. Co. (Appendix G), 339, 349. United States v. Baltimore & 0. R. Co. (176 Fed. 114), 345. United States v. Baltimore & O. R. Co. (reported), 008, 649, 083. United States v. Baltimore & 0. Ry. Co. (170 Fed. 456; Appen- dix G), 234, 238, 251. United States v. Bell Telephone Co. (159 U. S. 548: 16 Sup. ft. 69; 40 L. Ed. 225), 318. United States v. Belt Ry. Co., 624. United States v. Belt Ry. Co. ( 108 Fed. .542), (reported), 643. United States v. Boston & M. R. Co. (168 Fed. 148; Appendix G), 234. 287, 297, 303, .305, 338, 372, 378, 601. Inited Slates v. Boston &. M. R. Co. (Appendix G), 303. United States v. Boyer (85 Fed. 425), 48. Unitctl States v. Central of Ga. Ry. Co. (157 Fed. 893), 296, 297, 298, 072. I'nited States v. Central of Ga. Ry. Co. (157 Fed. 616), 290. United States v. Central of Ga. Ry. Co. (157 Fed. 893), 47, 237, 238, 209, 285, 287, 370. United States v. Central By. Co. ! (107 Fed. 893), 672. j United States v. Chesapeake & O. Ry. Co. ( see ApiJendix G ) , 206, 292, 294, 297, 2!)8, 343, 349, 372, •590. United States v. Chicago, etc., Ry. Co. (149 Fed. 486), 290, 294, 295, 296, 298, 301, 335. United States v. Chicago & N. W. Ry. Co. (157 Fed. 610), 290, 293, 303, 334. United States v. Chicago, etc.. R. Co. (156 Fed. 180), 309, 318. United States v. Chicago, etc., R. Co. (163 Fed. 775), 309, 327. United States v. Chicago, etc., R. Co. (162 Fed. 775), 297, 310, 331, 334, 335. United States v. Chicago, etc., Ry. Co. (143 Fed. 373), 301. United States v. Chicago, etc., Ry. Co. (150 Fed. 1S2). 292, ;J00, 322. United States v. Chicago, etc., R. Co. (156 Fed. 610), 292. L'nited States v. Chicago, etc., R. ■ Co. (173 Fed. 684; see Appen- dix G), 301. l'nited States v. C'liicngo. etc.. Ry. Co. (143 Fed. 353)', 259, 209. United States v. Chicago, etc., R. Co. (81 Fed. 783), 271. United States v. Chicago Great Western Ry. Co. ( 102 Fed. 775), 343, 345, 349. 372. 375. 377. United States v. Chicago & N. W. Ry. Co. (157 Fed. 010), 234, 265," 273, 283, 338, 072. TABLE OF CASES. Ivii [References are to pages.] United States v. Chicago, etc., E Co. (15G Fed. ISO), .337. United States v. Chicago, etc., R Co. (Appendix G), 349. United States v. Chicago, R. I. & P. Ry. Co. (173 Fed. 084) 38, 238, 287, 372, 370, 013. United States v. Cliicago, etc., R Co. (Appendix G), 372. United States v. Chicago G. W. Ry (102 Fed. 775), 370, 019, VrZO 023. United States v. Chicago, M. & P S. Ry. Co. (reported), 709. United States v. Chicago, R. I. & P. Ry. Co. (173 Fed. 0S4), 38. United Slates v. Cincinnati, H. & D. R. Co. (reported), 582. United States v. Chicago, etc., R. Co. (149 Fed. 480; affirmed 105 Fed. 423: 91 C. C. A. 373) ; 143 Fed. 353: 143 Fed. 373), 47. 60, 234, 237, 238, 240, 247, 248, 249, 252, 258, 273, 337, 540, 073, 674. United States v. Chicago & N. W. Ry. Co. (157 Fed. GIG; reversed 168 Fed. 230), 238, 250. United States v. Chicago G. W. Ry. Co. (162 Fed. 775), 238-, 252, 204, 2G.J, 207, 285, 280. United States v. Colorado, etc., R. Co. (157 Fed. 321), 45, 47, 423, 542, 500. United States v. Colorado (157), 48, 238, 244, 24G, 258. United States v. Cook (17 Wall. 168; 21 L. Ed. 538), 293. United States v. Denver & R. G. Co. (1G3 Fed. 519; 90 C. C. A. 329), 2!>3, 295, 297, 339, 349, G25. United States v. De Goer (38 Fed. SO), 425, 447. United States v. D. & R. G. R. Co. (103 Fed. 403), 6"20. United States v. Delaware, L. & W. R. Co. (152 Fed. 269), 49. United States v. Dixon (15 Pet. 141), 293. United States v. EI Paso R. Co. (Appendix G), 295. United States v. El Paso, etc. (see Appendix G), 294, 290, 298. United States v. El Paso & S. W. R. Co. (reported. Twh) cases), 525, 530. United States v. El Paso, etc., R. Co. (Appendix G), 237, 246. United States v. Erie R. Co. (100 Fed. 352: 163 Fed. 352), 48, 238, 249, 232, 264, 296, 307, 309, 310, 312, 452, 681. United States v. G. X. Ry. (D. C), (150 Fed. 229), 337. United States v. Geddes (131 Fed. 542), 274, 559. United States v. Geddes (131 Fed. 452; 65 C. C. A. 320), 271. United States v. Geddes (Appendix G), 238. United States \. Geddes (ISO Fed. 480), 271, 284. United States v. Great Northern Ry. Co. (145 Fed. 438), 292. United States v. Great Northern Ry. Co. (150 Fed. 229), 295, 298, 309. United States v. Great, etc., Ry. Co. (150 Fed. 229), 237, 319, 320. United States v. Great Northern Ry. Co. (145 Fed. 438), 234, 252, 262. United States v. Groat Western Ry. Co. (174 Fed. 399), 307. United States v. Illinois Central R. Co. (156 Fed. Rep. 182), 50, 237, 238, 285, 286, 287, 292, 300, 313, 326. United States v. Illinois Central R. Co. (170 Fed. 542), 294, 307, 309, 313, 322, 332, 372, 373, 377, 37S, 627, 675. Mii TABLE OF CASES. [References are to pages.] United States v. Illinois Central Tl. Co. (lliO Fed. 097), 205, 2!) 4, 303. 304, 338. United States v. Illinois Central R. Co. (15G Fed. 185), 320. United States v. Illinois Central R. Co. (180 Fed. 030), 380, 301, 302. Unite<-hi;;li Valley 11. Co. (102 Fed. 410: Appendix G), 259, 2»5. 287, 294, 298, 312, 349, 62,3, 674. I'nited St4ileH v. Ijcliifrh Valley K. Co. (160 Fed. 090; Appendix G), 309, 372, 562. United States v. Lehigh Valley R. Co. (115 Fed. 373; 162 Fed. 410; see 100 Fed. 096; Appendix G), 48, 249, 250. United States v. Louisville & N. R. Co. (167 Fed. 306), 370, 372, 373, 377, 378. United States v. Louisville & X. R. Co. (150 Fed. 193), 287, 30(i, 31-3, 331, 332, 338. United Statefs v. Louisville & X. R. Co.), 631. L'nited States v. Louisville & N. R. Co. (162 Fed. 185), 250, 263, 285, 287, 292, 294, 296, 297, 370, 399. United States v. Louisville, ete., R. Co. (— Fed. 185), 372. Un-ited States v. ]Montpelier & W. R. K. Co. (175 Feart of interstate employes; for if tiiat had boon the purpose it would have ]>ro^ ided for th« lia- bility of an engineer or the rail- road company for an injury to a passenger on a highway, struck through the negligence of the inter- state employe. Evidently the pur- pose of the Act is to create a right of action against a railroid com- pany in favor of an emjiloye for injuries sustained by him while en- gaged in interstate commorce. It may be remarked that there is, strictly speaking, no Federal ABOLITION OF FELLOW SERVANT RULE, 5 the basis of their own laws. The Code Napoleon made the emploj^er answerable for all injuries received by his worlc- men,- and this code is still in force in Belgium and Holland. In Italy and Switzerland, the doctrine of fellow servant does not prevail.^ Nor does it in Germany and Austria/ not in the latter country at least since 1869.^ In 1888, Eng'land adopted a statute which abolished the rale of fellow servant with reference to the operation of railroad trains, and in 1897 it extended the law so as to apply to many of the hazardous employments of that country." In the English Workman's Compensatory Act of 1906/ contributory negli- gence does not defeat the workmen's rights to recover dam- ages, or compensation, but "if it is proved that the injury to the workmen is attributable to the serious and willful mis- conduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disability, be disallowed."* law of negligence, the Federal courts simply applying tlie law of negligence as a part of the state law where the injury was occa- sioned. This is true of tlie doc- trine of respondeat superior. It is considered that this act for the first time creates a substantive right in favor of one party against another, based on the proposition that there is a ri?ht of action. sDalloz, 1841, fst partie, p. 271. 35 Law Quarterly Review, 184. 49 Jurid. Rev. p. 271. 5 Cong. Record, 60 Cong. Recoixl, 1st Sess., p. 4435. For an excellent review of tlie law of negligence as applied to master and servant in Continental countries, and a short review of the Act lof 1008, see the address of Hon. Addison C Harris before the Indiana State Bar Association, July 7, 1909, puMis;]ied in the pro- ceedings of that Association for the year 1909. See also the report rf the Committee on Jurisprudence before the same Association July G, I'JIO, read by Mr. Harris, as wall as the discussion following. « S(^e Appeiidix C. 'G Edw. VII Cap. 58. 8 See Ruegg's Employer's Liabil- ity, 338. See also Thomas v. Quar- termain, 18 Q. B, Div. 693; Grif- fiths v. Dudley, 9 Q. B. Div. 357; Stuart v. Evans, 31 W. R. 703. Referring to the argument in favor of the fellow-servant rule as declared by the courts of this coun- try and England, it has been ob- served by an eminent authorit}': "If, in countries where the doctrine of common employment has been more or less circumscribed, none of the evil results which it is declared to have obviated can be detected, it may be safely concluded that no harm would have been produced if the doctrine had never been ap- plied, and that no harm will result if it should be entirely abrogated by the legislature — ^the only au- thority by which such a change in the law can now be alTected." Lnbatt, Jfaster and Servant. 2 vol., p. 1325. 6 FEDERAL EMPLOYERS' LIABILITY ACT. § 3. Quebec and Mexico. — The doctrine of fellow servant does not obtain in Quebec, in that respect following the French law yet there in force ; ^ but in Ontario and the re- mainder of British North America, the rule does yet ob- tain/** In a case brought in a Circuit Court of the United States to recover damages for an injury received in the Province of Quebec, the court enforced the doctrine concern- ing fellow servant that prevails in that province." In Mexico, the master is liable to his servant for an injury caused by the negligence of a fellow servant/- » Canadian Pac, Ry. v. Eobin- son, 1-4 Can. S. C. 105, 115; City Demolombe, Vol. 31, Ko. 368, and Sourdat, Vol. 2, No. 911. See Ful- ler V. Grand Trunk Ry. Oo., 1 Loav Cas. L. J. 68; Bourdeau v. Grand Trunk E.y. Co. 2 Low Cas. L. J. 186, and Hall v. Canadian, etc., Co. 2 :Montreail L. N. 245. 10 "According to the French law common employment is no defense, and does not exonerate tlie em- ployer from liability for the negli- gence of a servant avIio may by his negligence have caused an ac- cident from which another servant has suffered." Asbestos, etc., Co. V. Ihirand, 30 Can. S. C. 285; The Queen v. Grenier, 30 Can. S. C 42; The Queen v. Filion, 24 Can. IS. C. 482, afiirming 4 Can. Exch. 134; Belanger v. Riopel, 3^ Mon- treal S. C. 198. 11 Boston, etc.. R. Co. v. McDuf- fey, 25 C. C. A. 247; 51 U. S. App. Ill; 73 Fed. Rep. 934. 12 ^Mexican Cent. R. Co. v. Knox, 114 Fed. Rep. 73; 52 C. C. A. 21;' IMexican Cent. R. Co. v. Sprague, 114 Fed. Rep. 544; 52 'C. C. A. 318. See also Mexican Cent. R. Co. v. Glover, 107 Fed. Rep. 356; 46 0. C. A. 334. CHAPTER II. CONSTITUTIONALITY OF STATUTE— EFFECT ON STATE LEGISLATION. CONSTITUTIONALITY. SECTION. 4. Power of Congress to increase liabilities of master. 5. Authorizing a recovery for negligent act of fellow serv- ant. 6. Basis of rule of master's non- liability for negligence of •a fellow servant. 7. Validity of statute allowing a recovery for an injury occasioned by a fellow serv- ant's negligence. 8. Validity of statute as to past contracts of employment. 9. Limiting statute to employees of railroad companies — Fourteenth Amendment. 10. Validity of statute classifying instrumentalities. 11. Power of Congress to enact statute of 1908. SECTION. 12. Constitutionality of Wiscon- sin and Nebraska statutes. Invalidity of Act of 1906. The parts of the Act of 1906 rendering it invalid. Congress can only legislate concerning interstate com- merce. Effect of Act of 1908 on State legislation. Effect of Act of 1908 on State legislation, continued. Result of decisions. Must interstate employee bring his action on the statute. Act of 1906, validity in Dis- trict of Columbia and Ter- ritories. 21. Construction of statute. 13. 14. 15. 16. 17. 18. 19. 20. § 4. Power of Congress to increase liabilities of master. — The validity of statutes increasing or changing the liability of a master to his servant, is one that presents itself at an early stage in the discussion of the question of his liability under this Federal Employers' Liability Act. This question presents itself in three aspects : First — The power of Congress to change or modify the liability at common law of a master to his servant, concerning his liability for the negligence of his fellow servant. Second — The power of Congress to enact a law author- 7 8 FEDERAL EMPLOYERS' LLA3ILITY ACT. izing a recovery when the servant has been guilty of negli- gence contributing to his injury. Third — The power of Congress to legislate upon any phase of the relation of master and servant. § 5. Authorizing a recovery for negligent act of fellow servant. — In discussing the power of a Legislature to change the law with reference to the liability of a master to his servant — not taking into consideration that Congress must limit the scope of its legislation to masters and servants en- gaged in interstate commerce — decisions of state courts are by analogy available. The doctrine that a master is not liable to his servant for an injury inflicted upon him by the negligence of his fellow servant is a rule of law enunciated and enforced by the courts without any legislative sanction, adopted by them from a supposed or assumed public policy. This rule was announced in England in 1837/ in South Car- olina in 1838,^ in Massachusetts in 1842,^ and in Penns.yl- vania in 1854.* In Massachusetts, the conclusion reached was upon what had been decided in South Carolina and England.^ § 6. Basis of rule of master's non-liability for negligence of fellow servant.— In South Carolina, the basis for the rule assumed by the Supreme Court, holding the master not liable to his servant for injuries inflicted by the negligence of his fellow servant, is that the injured servant had entered into a joint undertaking with his fellow with a common employer or master, each having stipulated for the per- formance of his several part; and as each of them was not liable to the master for the conduct of the other, conversely the master was not liable to one for the conduct of the other, ' Priestly v. Fowler, 3 M. & W. 1. * Ryan v. Cumberland Valley R. 'McMurray v. So. Car. R. R. R. Co. 2.3 Pa. St. 384. Co. 1 McMullen, 385; 36 Am. "The rule was adopted in New Dec. 208. York in 1851. Coon v. Utica, etc., » Farwell v. Bost^jn, etc., R. Co. R. Co. 5 N. Y. 492. 4 Mete. 49 ; 38 Am. Dec. 339, CONSTITUTIONALITY OF STATUTE. 9 but was, when he was not at fault, only liable to his servant for his wages." In Massachusetts the question was put upon the ground of implied contract, — that the contract of employment im- plied upon the part of the servant that he assumed all risk arising from the negligence of his fellow; and this exemp- tion was declared to rest upon considerations of public policy. "Where several persons," said the court, "are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service, if the common employer will not take such pre- cautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectively secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other." Speaking of servants em- ployed in different departments, and applying the rule to them, the court further said : * ' When the object to be accom- plished is one and the same, when the employers are the same, and the several persons employed derive their authority and compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary the cir- cumstances of each case.'^ The master is not exempt from liability, in such case, because the servant has better means of providing for his safety when he is employed in immediate connection with those from whose negligence he might suffer, but because the implied contract of the master does not ex- tend to indemnify the servant against the negligence of any ^Murray v. So. Car. R. Co. 1 tion into the conditions of each McMul, 385; 36 Am. Dec. 268. case, and award or withhold dam- ' Was not this language prompt- ages as the facts of each particu- ed by an unwillingness of the lar case would demand as a matter court to undertake an investiga- of justice and right? 10 FEDERAL EMPLOYERS' LIABILITY ACT. one but himself;^ and he is not liable in tort as for the negli- gence of his servant, because the person suffering does not stand in the relation of a stranger, but is one whose rights are regulated by contract, express or implied."® In Indiana, in 1855, the Supreme Court said: "It is considered that public policy requires that servants engaged in common em- ployment shall not have an action against their principal for injuries resulting from the negligence of one or more of such servants, because the tendency of such a doctrine is to make them anxious and watchful and interested for the faithful conduct of each other, and careful to induce it, while the opposite doctrine would tend in a different direction. ^"^ The safety and welfare of the public, therefore, denmnd the establishment of the principle of the non-liability on the part of the employer in such case;" while, when estab- lished, it can work no injury to the servant,^* because his en- tering upon the service is voluntary ,^-^ is with a knowledge of its hazards, and with a power and right to demand such wages " as lie should deem compensatory. ' ' ^^ The doctrine of Priestly v. Fowler ^" was stated by Baron Alderson in a sub- sequent case in these words : ' ' They have both engaged in a common service, the duties of which impose a certain risk on each of them, and in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow servant and not of his master. " " He knew when he was engaged in the service that he was exposed to the risk of injury, not only from his own want of skill and care, but also from the want of it on the part of his follow servant, * Where wa3 the authority to " Experience shows that it does, say there was an implied con- until legislature after legislature tract? Did not the court merely has been compelled to modify the assume there was such contract? harsh rule announced by these de- • Farwell v. Boston, etc., R. Co. cisions. 4 Mete. 4!); 38 Am. Dec. 339. "True only in a limited sense, "This is a strange assumption because of the pressure that mod- in view of the law on the subject ern civilization thrusts upon the in Continental Europe. laboring man to secure for him- " E.xperience of long years' du- self and family the sustenance of ration shows that the public in life. Western Continental Europe arc as "The supjdy of labor fixes the safely cared for as in England wages. and much more so than in " Madison, etc. R. Co. v. Bacon. America, as against the careless- G Ind. 201). ness of servants. i« 3 Mees & Wels, 1. CONSTITUTIONALITY OF STATUTE. 11 and he must be supposed to have contracted on the terms that, as between himself and his master, he would run the risk, 'a risk which he' must be taken to have agreed to run when he entered into the defendant's service." "The prin- ciple is," Baron Alderson again said, "that a servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, and this includes the risk of negligence on the part of a fel- low servant, whenever he is acting in the discharge of his duty as servant of him who is common master of both." " § 7. Validity of statute allowing a recovery for an injury occasioned by a fellow servant's negligence.— From an ex- amination of the cases quoted and cited in the foregoing sec- tion, it will be seen that the cases rest upon practically two grounds : That it is against public policy to allow a servant to recover damages occasioned by the negligence of his fellow ^■^ Hutchinson v. York, etc., R. Co. 5 Exch. 343; 14 Jur. 837; 19 L. J. (Exch.) 296. The English rule was forced upon the courts of Scotland by the decision of the House of Lords in Wilson V. Merry, L. R. 1 Sc. & Div. App. Cas. 326; 19 L. T. (N. S.) 33. For a few of the hundreds of cases upon this question, see Wa- bash, etc, R. Co. V. Conkling, 15 111. App. 157; Stucke v. Orleans R. Co. 50 La. Ann. 188, 23 So. Rep. 342; Ackerson v. Dennison, 117 Mass. 407; World's Colum- bian Exposition v. Bell, 76 111. App. 591; Doyle v. White, 9 App. Div. (N. Y.) 521; 41 N. Y. Supp. 628; 75 N. Y. St. Rep. 628; Hicks V. Southern R. Co. 63 S. C. 559; 41 S. E. Rep. 753; Barton's Hill Coal Co. V. Ried, 3 Macq. H. L. Cas. 266; Baltimore, etc., R. Co. V. Colvin, 118 Pa. St. 230; 12 Atl. Rep. 337; 20 W. N. C. 531; Chi- cago, etc., R. Co. V. Ross, 112 U. S. 377; 28 L. Ed. 787; 5 Sup. Ct. Rep. 184; Latremouille v. Ben- nington, 63 Vt. b36; 22 Atl. Rep. 656; 48 Am. & Eng. R. Cas. 265; Walton v. Bryn Mawr Hotel Co., 160 Pa. St. 3; 28 Atl. Rep. 438; Olsen v. Nixon, 61 N. J. L, 671; 4 Am. Neg. Rep. 515; 40 Atl. Rep. 694; Jungnitsch v. Michigan, etc., Co. 105 Mich. 270; 03 N. W. Rep. 296; 2 Det. Leg. N. 107; Elwell v. Hocker, 86 Me. 410; 30 Atl. Rep. 84. After a review of the early case9 on this subject, Hon. Addison C. Harris said in his address before the Indiana State Bar Association, July 7, 1909 (Indiana Bar Asso- ciation Report for 1909, p. 50) r "So, now no matter liow negligent the employer miglit be^ yet if it appeared ( 1 ) that the accident was caused by the negligence of a fel- low servant, or (2) that the serv- ant injured contributed in the slightest degree to the accident, in none of these cases was there any right of action. And these rules were supported by the pre- sumption (3) that the accident was caused by some fault of the servant, because generally men are not injured while carefully doing their A^iork; and so the burden of proof was put upon him to sho»v 12 FEDERAL EMPLOYERS' LLLBILITY ACT. servant, and the other is that he has by his contract for service impliedly assumed the risk of such association or of his fellow servant's negligence. Such being the case, it read- ily' follows that the legislature can change the rule of public policy or provide that the implied undertaking shall not be a part of the contract for service. In the usual employers li- ability statutes this is done only to a limited extent, by pro- viding in w'hat particular instance the servant may recover for injuries occasioned by his fellow's negligence, or by providing in what particular instances the relation in law of fellow servant shall not be deemed to exist. Such statutes have been universally upheld, both by the state and Federal courts.^^ This power has been stated thus tersely: "It is both tlie negligence of his em- affirming 31 Minn. 11; IC X. W. ployes and that he had not in any Eep. 413; 47 Am. Rep. 771; Pitts- Avise helped or contributed to the burg, etc., R. Co. v. Montgomery, accident. And the court went fur- 152 Ind. 1; 49 N. E. Rep. 482; ther and held (4) that if the 69 L. R. A. 875; 71 Am. St. 30; workmen knew, or in the exercise Pittsburg, etc., R. Co. v. Light- of ordinary care and observation heiser, 168 Ind. 438; 78 N, E. should have knowTi, of the negli- Rep. 1033; Indianapolis, etc., R. gence of the rna&ter, then he could Co. v. Houghton, 157 Ind. 494; 60 not recover, even though in the N. E. Rep. 943; 54 L. R. A. 787; hurry and stress of his hazardous Pittsburg, etc., R. Co. v. '.loss, 169 service at the immediate time of Ind. 3; 80 N. E. Rep. 84-5; Chi- the accident he did not recall his cago, etc., Ry. Co. v. Pontius, 157 master's negligence." U. S. 209; 39 L. Ed. 675; 15 Sup. "McAunick v. ilississippi etc., Ct. Rep. 585, affirming 52 Kan. R. Co. 20 Iowa, 338; Bucklew v. 264; 34 Pac. Rep. 739; Baltimore, Central, etc., R. Co. 64 Iowa, 611; etc., R. Co. v. Yoight, 176 U. S. Rose v. Des Moines, etc., R. Co. 498; 44 L. Ed. 560; 20 Sup. Ct. 39 Iowa, 246; Kansas, etc., R. Co. Rep. 385; ]\lcGuire v. Chi^^go, ^tc, v. Peavey, 29 Kan. 169; Missouri R. Co. 131 Iowa, 340; 108 N. W. Pacific R. Co. v. Mackey, 33 Kan. Rep. 902; Hancock v. Railway Co. 298; 6 Pac. Rep. 291 ; Attorney- l'-4 N. C. 222; 32 S. E. Rep.'679; General v. Railroad Cos. 35 Wis. Tullis v. Lake Erie, etc., R. Co. 425; Dithberner v. Chicago, etc., 175 U. S. 348; 44 L. Ed. 192; R. Co. 47 Wis. 138; 2 N. W. Rep. 20 Sup. Ct. Rep. 136; Railroad 69; Herrick v. :Minneapolis, etc., Co. v. Thompson, 54 Ga. 509; R. Co. 31 Minn. 11; 16 N. W. Georgia R. Co. v. Ivey, 73 Ga. Rep. 413 (upholding Iowa stat- 499; Georgia R. Co. v. Brown, 86 ute) ; Herrick v. Minneapolis, etc., Ga. 320; Georgia R. Co. v. Miller, R. Co. 32 Minn. 435; 21 N. W. 90 Ga. 574; St. Louis, etc., R. Co. Rep. 471; Missouri, etc., R. Co. v. Matthews, 105 U. S. 1 ; 41 L. V. Mackey, 127 U. S. 205; 32 L. Ed. 611; 17 Sup. Ct. Rep. 243; Ed. 107; 8 Sup. Ct. Rep. 1161, affirming 121 Mo. 298; 25 L. R. amrming 33 Kan. 298; 6 Pac. A. 161; 24 S. W. Rep. 591; Hoi- Rep. 291; Minneapolis, etc., R. Co. den v. Hardy, 169 U. S. 366; 42 V. Herrick, 127 U. S. 210; 32 L. L. Ed. 780; 18 Sup. Ct. Rep. Ed. 109; 8 Sn].. Ct. Rep. 1176, 383; affirming 14 Utah, 71; 37 CONSTITUTIONALITY OF STATUTE. 13 competent for the legislature, in the exercise of the police power, to take steps for the protection of the lives and limbs of all persons who may be exposed to dangerous agencies in the hands of others." ^° In a recent case in Colorado the valid- ity of a statute abolishing the doctrine of co-service as a defense was passed upon and the statute upheld in the fol- lowing language: "The final and important question is the validity of the co-employe act. It is urged that the act is unconstitutional in that it is in conflict with the fourteenth amendment to the Federal Constitution, because it deprives persons of their property without due process of law. The act in question renders the employer liable for damages result- ing from injuries to or death of an employe, caused by the negligence of a co-employe in the same manner, and to the same extent, as if the negligence causing the injury or death was that of the employer. That the act in question may be regarded by some as harsh or unjust, because imposing too great a disability, is not a matter which we can consider in determining its validity by constitutional tests. Whether or not the employer is liable under the act in question must be determined by each particular case based on the provisions of the act. It does not deprive him of any defense to the liability thereby imposed which, under the established rules of law could be regarded as sufficient, save and except his own lack of negligence; but such a defense is not a consti- tutional right. The law itself, as a rule of conduct, may, unless constitutional limitations forbid, be changed at the will of the legislature. The exercise of the discretion of that branch of the government to enact laws cannot be ques- L. R. A. 103; 46 Pac. Rep. 756: N. E. Rep. 415; Mickelson v. 14 Utah, 96; 37 L. R. A. 108: Truesdale, 63 Minn. 137; 65 N. 46 Pac. Rep. 1105; St. Louis, etc., W. Rep. 260. R. Co. V. Paul, 173 U. S. 404; i" Indianapolis, etc., R. Co. v. 43 L. Ed. 746; 19 Sup. Ct. Rep. Houlihan, 157 Ind. 494; 60 N. E. 419; affirming 64 Ark. 83; 37 L. Rep. 943; 54 L. R. A. 787. See R. A. 504; 62 Am. St. Rep. 154; Tullis v. Railway Co. 175 U. S. 40 S. W. Rep. 705; Pittsburg, etc., 348; 20 Sup. Ct. Rep. 136; 44 L. R. Co. V. Collins, 168 Ind. 467; 80 Ed. 192. 14 FEDERAL EMPLOYERS LIABILITY ACT, tioned so long as such laws do not conflict with either state or Federal constitutional provisions. No such provisions have been called to our attention which limit the authority of the general assembly to abolish the rule heretofore existing which exempted the employer from liability to employes caused by the negligence of a co-employe, and render him liable to his employes for the negligence of a co-employe. For the pur- pose of providing for the safety and protection of employes in the service of a common employer, the law making power has the undoubted authority to abrogate the exception to the general rule respondeat superior in favor of the employer, and make him liable to one of his employes for damages caused by the negligence of another employe while acting within the scope of his employment, regardless of the fact that such employes are fellow servants. ' ' -" § 8. Validity of statute as to past contracts of employ- ment. — Where the servant has entered into the employment of a master before the statute has taken effect, but the em- ployment is not for a continuous service — as in the case of a railroad engineer — and after the passage of the statute is in- 20 Vindicator, etc., Co. v. First- brook, 3G Colo. 498: 86 Pac. Eep. 313. Mobile, J. & K. C. R. Co. A-. Turnipseod, 219 U. S. 35; 31 Sup. Ct. 136; .55 L. Ed. 78; affirm- ing 91 Miss. 273; 46 So. 360; 124 Am. St. 679; Florida East Coast V. Lassitcr, 58 Fla. 234; 50 So. 428. That a statute imposing liabil- ity on the master for an injury to his servant where he, the master, is not noirligent, see Ives v. South Budalo Ky. Co. 201 X. Y. 271; 94 N. E. 431; reversing 140 N. Y. App. Div. 921; 125 N. Y. Supp. 1125, whicli afTirmed 68 N. Y. Misc. Rep. G^i3; 124 N. Y. Sui)]). 920. For some Georgia eases holding under the Code that a recovery can be had for an injury caused by the negligence of a fellow serv- ant, see (Iforgia, etc., R. Co. v. CJoldwire, 56 (ia. 190; Marsh v. South Carolina, etc., R. Co. 56 Ga. 274; Georgia, etc., R. Co. v. Rhodes, 50 Ga. 645; Georgia, etc. R. Oo. V. Brown, 86 Ga. 320; 12 S. E. Rep. 812; Georgia, etc., R. Co. V. Cosby, 97 Ga. 299; 22 S. E. Rep. 912; Southern, etc., R. Co. V. Jolmson, 114 Ga. 329; 40 S. E. Rep. 235; Georgia, etc., R. Co. V. Ivey, 73 Ga. 499; Georgia, etc., R. Co. V. Hicks, 95 Ga. 301; 22 S. B. Rep. 613; Chandler v. Southern R. C\). 113 Ga. 130; 38 S. E. Rep. 305. For a recent case on tliis ques- tion, see Kiley v. Chicago, etc., R. Co. 138 wis. 215; 119 N. W. Rep. 309; 120 N. W. 756, and Haring v. Great Northern Ry. Co. (Wis.), 119 K W. Hop. 325. 1'hesc last two cases hold that tlio excejjting of office and shop employes of a railroad from the operation of the act does not ren- der it invalid. See Callahan v. Bridge Co., 170 Mo. 473; 71 S. W. Rep. 208; 60 L. R. A. 249; 94 Am. St. Rep. 746; Howard v. Illi- nois Central Rv. Co. 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. Ed. 297. CONSTITUTIONALITY OP STATUTE. 15 jured by a fellow servant, and he would not have had a right of recovery except for its provisions, he may recover his dam- ages, and such legislation is not retroactive nor does it impair the obligation of a contract.-^ This question came before the Circuit Court for the Northern District of Iowa upon a con- struction of the act of June 11, 1906,"- but the court held that the statute in its terms was not retroactive. The question then before the court was whether the act of Congress had taken away a right of action given by an Iowa statute, the cause of action having arisen in 1905 ; and the court held that the act of 1906 had no retroactive effect, and if it did so have as to take away the cause of action, it would be void.-^ § 9. Limiting statute to employes of railroad companies — Fourteenth Amendment. — A statute concerning liability of a master to his servant for injuries occasioned by his fellow is not special legislation, nor is it the taking of prop- erty without due process of law. ' ' The company calls attention of the court, ' ' said Justice Field of the Supreme Court of the United States, "to the rule of law exempting from liability an employer for injuries to employes caused by the negligence or incompetency of a fellow servant w^hich prevailed in Kan- sas and in several other states previous to the act of 1874, unless he had employed such negligent or incompetent serv- ant without reasonable inquiry as to his qualifications, or had retained him after knowledge of his negligence or incom- petency. The rule of law is conceded where the person in- jured, and the one by whose negligence or incompetency the injury is caused, are fellow servants in the same common employment, and acting under the same immediate action * * * Assuming that this rule would apply to the case presented but for the law of Kansas of 1874, the contention ^ Pittsburg, etc., R. Co. v. Light- '= C. 3073, 34 statute at L. 232. heiser, 168 Ind. 438; 78 N. E. =^'' Hall v. Chicago, etc., R. Co. Rep. 1033; Pittsburg, etc., R. Co. 149 Fed. Rep. 564. V. Lightheiser, 1G3 Ind. 247; 71 N. E. Rep. 218, 660. 16 FEDERAL EMPLOYERS' LIABILITY ACT. of the company * * * is that the law imposes upon rail- road companies a liability not previously existing, in the enforcement of which their property may be taken ; and thus authorizes, in such cases, the taking of i)roperty without due process of law, in violation of the fourteenth amendment. * * * The supposed hardship and injustice consist in im- puting liability to the company, where no personal "wrong or negligence is chargeable to it or to its directors. But the same hardship and injustice, if there be any, exist where the company, without any wrong or negligence on its part, is charged for injustice to passengers. * * * The utmost care on its part will not relieve it from liability, if the pas- senger injured be himself free from contributory negligence. The law of 1874 extends this doctrine and fixes a liability upon railroad companies, where injuries are subsequently suf- fered by employes, though it may be by the negligence or incompetency of a fellow servant in the same general employ- ment and acting under the same immediate direction. That its passage was within the competency of the legislature we can have no doubt. The objection that the law of 1874 deprives the railroad companies of the equal protection of the law is even less tenable than the one considered. It seems to act upon the theory that legislation which is special in its char- acter is necessarily within the constitutional inhibition ; but nothing can be further from the fact. The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application. Laws for the improvement of municipalities, the opening and widen- ing of particular streets, the introduction of water and gas, and other arrangements for the safety and convenience of their inhabitants, and the laws for the irrigation and drain- age of particular lands, for the construction of levees and the bridging of navigable rivers, are instances of this kind. * * * A law giving to mechanics a lien on buildings con- structed or repaired by them, for the amount of their work, and a law requiring railroad corporations to erect and main- GONSTITUTIONALITY OF STATUTE. 17 tain fences along their roads, separating them from land of adjoining proprietors so as to keep cattle off their tracks, are instances of this kind. Such legislation is not obnoxious to the last clause of the fourteenth amendment, if all persons subject to it are treated alike under similar circumstances and conditions in respect of both the privileges conferred and the liabilities imposed. * * * But the hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad cor- porations, having for its object the protection of their em- ployes as well as the safety of the pubic. " -* In a subse- quent case a like decision was made, where a statute applied only to railroads. ^^ " Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; 8 Sup. Ct. Rep. 1161; 32 L. Ed. 107; affirming 33 Kan. 298; 6 Pac. Rep. 291; Minneapolis, etc., R. Co. v. Her- rick, 127 U. S. 210; 8 Sup. Ct. Rep. 1176; 32 L. Ed. 109, and af- firming Herrick v. Minneapolis, etc., R. Co. 31 Minn. 11; 16 N. W. Rep. 413; 47 Am. Rep. 771; Herrick v. Minneapolis, etc., Co. 32 Minn. 435; 21 N. W. Rep. 471; Pittsburg, etc., R. Co. v. Mont- gomery, 152 Ind. 1; 49 K E. Rep. 482; 69 L. R. A. 875; 71 Am. St. Rep. 30; Indianapolis Union Ry. Co. V. Houlihan, 157 Ind. 494; 60 N. E. Rep. 943; 54 L. R. A. 787. ==Gulf, etc., R. Co. V. Ellis, 105 U. S. 150; 17 Sup. Ct. Rep. 255; 41 L. Ed. 666; reversing 87 Tex. 19; 26 S. W. Rep. 985, Alummun Co, V. Ramsey 32 Sup. Ct., 76. Deppe V. Chicago, etc, R. Co. 36 Iowa, 52; Schroeder v. Chicago, etc., R. Co. 47 Iowa, 375 ; Potter v. Chicag'o, etc., R. Co. 46 Iowa, 399; O'Brieu v. Chicago, etc., R. Co. 116 Fed. Rep. 502 ; Chicago, etc.. R. Co. V. Pontius, 52 Kan. 264; 34 Pac. Rep. 739; affirmed, 157 U. S. 209; 15 Sup. Ct. Rep. 585; 39 L. Ed. 675; Lavallee v. St. Paul, etc., R. Co. 40 Minn. 249; 41 N. W. Rep. 974; Johnson v. St. Paul, etc., R. Co. 43 Minn. 222; 45 N. W. Rep. 156; 8 L. R. A. 419; Hancock v. Norfolk, etc., R. Co. 124 N. C. 222; 32 S. E. Rep. 079; Indianapolis, etc., R. Co. v. Houlihan, 157 Ind. 494; 60 N. E. Rep. 943; 54 L. R. A. 787; Dith- berner v. Chicago, etc., R. Co., 47 Wis. 138. There has been much discussion whether or not the prohibition in the Fourteenth Amendment pro- hibiting states enacting laws giv- ing unequal protection to citizens is the same in meaning with ref- erence to such states as the pro- hibition in the Fifth Amendment is with reference to the power of Congress. The question has never been decided. See Stratton v. Morris, 89 Tenn. 497. 18 FEDERAL EMPLOYERS' LIABILITY ACT. § 10. Validity of statute classifying instrumentalities.— Kot only may the legislature select railway companies for legislation concerning their employes, but it may specify in what particulars they shall be liable, as, for instance, con- cerning "any signal, telegraph office, switch yard, shop, round house, locomotive engine or train upon a railway." "These," said the Supreme Court of Indiana, "were proper to be selected as sources of unusual danger which should be guarded against; the object to be accomplished was to incite railroad companies to use the utmost diligence in the selection and supervision of their servants who are put in charge of these dangerous agencies, so that fewer lives and limbs of those who are entitled to claim the protection of our laws would be sacrificed; the legislature evidently considered that strangers and employes (the attorney and the ticket seller, for example) who were not fellow servants of those in charge of the agencies named were sufficiently protected by the railroad company's existing liability to them for the negligent operation of those dangerous agencies; the legis- lature evidently determined to protect all persons who were not already protected for the negligent use of particular in- struments; this classification is made on the basis of the peculiar hazards in railroading, relating equally to all em- ployers within the class; to separate railroading from other business was not an unconstitutional discrimination, because the dangers (the basis of the classifications) do not arise from the same sources; but the claim that a classification not made on the basis of dangerous agencies employed in the business, but founded on the question whether the employe who was injured without his fault by a fellow servant's negligent use of a dangerous agency was acting at the time on his own initiative in the line of his duty or under the orders of a superior, is the only constitutional classification, is unwarranted; a train is wrecked through the negligence of the engineer, two brakemen are injured without fault on their part, one acting at the time in obedience to the con- CONSTITUTIONALITY OF STATUTE. 19 ductor's orders, the other acting on his own initiative within the line of his duty; there should be and there is no consti- tutional limitation upon the legislature's exercise of the police power by which a law may not be enacted to protect both brakemen equally from the negligence of the engineer. We hold, therefore, that the act is not obnoxious to the ob- jections urged by appellants."-*^ § 11. Power of Congress to enact statute of 1908. — The Employers Liability Act of 1906 was stricken down because congress had attempted to legislate upon a subject or sub- ject-matter that related wholly to the power of a state; and had so attempted to interblend that power with its power to legislate upon the subject of interstate commerce that the several clauses could not be separated and those clauses re- lating alone to interstate commerce remain. It was upon this ground alone that this statute of 1906 was overthrown. ^ Indianapolis Union Ry. Co. v. Houlihan, 157 Ind. 494; 60 N. E. Rep. 943; 54 L. R. A. 787. That a classification cannot be made arbitrarily, see Gulf, etc., R. Co. V. Ellis, 165 U. S. 150; 17 Sup. Ct: Rep. 255; 41 L. Ed. 666; State v. Loomis, 115 Mo. 807; Missouri Pacific R. Co. v. Mackey, 127 U. S. 205; 8 Sup. Ct. Rep. IIGI; 32 L. Ed. 107; St. Louis, etc., R. Co. v. Paul, 173 U. S. 404; 19 Sup. Ct. Rep. 419; 43 L. Ed. 746; Connelly v. Union Sewer Pipe Co. 184 U. S. 540; 22 Sup. Ct. Rep. 431; 46 L. Ed. 679; Akeson v. R. Co. 106 Iowa, 54; 75 N. W. Rep. 676; Lavallee v. St. Paul, etc., R. Co. 40 Minn. 249; 41 N. W. Rep. 947; Johnson V. St. Paul, etc., R. Co. 43 Minn. 222; 45 K W. 156; Missouri, etc., R. Co. V. Medaris, 60 Kan. 151; 55 Pac. Rep. 875; Indiana- polis T. & T. Co. V. Kinney, 171 Ind. 612; 85 N. E. Rep. 954; Tullis V. Lake Erie, etc.,'R. Co. 175 U. S. 349; 20 Sup. Ct. Rep. 136; 44 L. Ed. 192; 105 Fed. Rep. 554; Minnesota Iron Co. v. Kline, 199 U. S. 593; 26 Sup. Ct. Rep. 159; 50 L. Ed. 322; Chicago, etc., R. Co. V. Pontius, 157 U. S. 209; 15 Sup. Ct. Rep. 585; 39 L. Ed. 675; affirming 52 Kan. 264; 34 Pac. Rep. 739. An employee is as much an instrimient in the for- warding of interstate commerce as a car loaded with interstate traffic; and Congress has as much power to legislate with reference to him as to the car. It certainly is a confession of the great weak- ness of the government when it is claimed that the United States can legislate concerning a car en- gaged in interstate commerce but is powerless to legislate for the protection of an employee hand- ling that car. 20 FEDERAL EMPLOYERS' LIABILITY ACT. But the court was very careful to point out that congress had the power to enact a statute relating to employers and employes engaged in interstate commerce, where the statute was enacted for the protection of the employe. In discussing the act of 1906, and meeting the assertion that there was a total want of power in congress in any conceivable aspect to regulate the subject with which the act dealt, and also stating that "if it be that from the nature of the subject no power whatever over the same can, under any conceivable circum- stances, be possessed by congress, we ought to so declare," the Supreme Court, through Justice White, said: "1. The proposition th'at there is an absolute want of power in congress to enact the statute is based on the as- sumption that as the statute is solely addressed to the regu- lation of the relations of the employer to those whom he emploj'^s and the relation of those employed by him among themselves, it deals with subjects which cannot under any circumstances come within the power conferred upon con- gress to regulate commerce. As it is patent that the act does regulate the relation of master and servant in the cases to which it applies, it must follow that the act is beyond the authority of congress if the proposition just stated be well fovmded. But we may not test the power of congress to regulate commerce solely by abstractly considering the particular subject to which a regulation relates, irrespective of whether the regulation in question is one of interstate commerce. On the contrary, the test of power is not merely the matter regulated, but whether the regulation is directly one of interstate com- merce, or is embraced within the grant conferred on congress to use all lawful means necessary and appropriate to the execution of the power to regulate commerce. We think of the unsoundness of the contention, that because the act regu- lates the relation of master and servant, it is unconstitu- tional, because under no circumstances and to no extent can the regulation of such subject be within the grant of author- CONSTITUTIONALITY OF STATUTE. 21 ity to regulate commerce, is demonstrable. We say this be- cause we fail to perceive any just reason for holding that congress is without power to regulate the relation of master and servant, to the extent that regulatic^is adopted by con- gress on that subject are solely confined to interstate com- merce, and, therefore, are within the grant to regulate that commerce or within the authority given to use all means appropriate to the exercise of the powers conferred. Ta il- lustrate: Take the case of an interstate railway train, that is, a train moving in interstate commerce, and the regulation of which therefore is, in the nature of things, a regulation of such commerce. It cannot be said that because a regula- tion adopted by congress as to such train when so engaged in interstate commerce deals with the relation of the master to the servants operating such train or the relations of the servants engaged in such operation between themselves, that it is not a regulation of interstate commerce. This must be, since to admit the authority to regulate such train, and yet to say that all regulations which deal with the relation of master and servants engaged in its operation are invalid for want of power would be but to concede the power and then to den}^ it, or, at all events, to recognize the power and yet to render it incomplete. Because of the reasons just stated we might well pass from the consideration of the subject. We add, however, that we think the error of the proposition is shown by previous decisions of this court. Thus, the want of power in a state to interfere with an interstate commerce train, if thereby a direct burden is imposed upon interstate commerce, is settled beyond question.^^ And decisions cited in the margin,^^ holding that state statutes which regu- =" Mississippi R. R. Co. v. Illi- Commissioners, 207 U. S. 328; 28 nois Cent. R. R., 203 U. S. 335, Sup. Ct. Rep. 121; 52 L. Ed. 230. 343; 27 Sup. Ct. Rep. 90; 51 L. ^Sherlock v. Ailing, 93 U. S. Ed. 209: affirming 70 C. C. A. 99; 23 L. Ed. 819; affirming 44 617; 138 Fed. Rep. 377, and Ind. 184; Missouri Pacific Ry? Co. cases cited; Atlantic Coast Line v. Mackey, 127 U. S. 205; 8 Sup. R. R. V. Wharton et al. Railroad Ct. Rep. 1161; 32 L. Ed. 107; 22 FEDERAL EMPLOYERS LIABILITY ACT. late the relation of master and servant were applicable to those actually engaged in an operation of interstate com- merce, because the state power existed until congress acted, by necessary implication, refute the contention that a regu- lation of the subject, confined to interstate commerce, when adopted by congress M'ould be necessarily void because the regulation of the relation of master and servant was, how- ever, intimately connected with interstate commerce, beyond the poAver of congress. And a like conclusion also per- suasively results from previous rulings of this court concern- ing the act of congress, known as the Safety Appliance Aet."-« affirming 33 Kan. 298; 6 Pac. Rep. 291; Minneapolis, etc., Rv. Co. V. Merrick, 127 U. S. 210; 's Sup. Ct. Rep. 117G; 32 L. Ed. 109: affirming 31 Minn. 11; IG X. W. Rep. 413; 47 Am. Rep. 771; Chicago, etc., Rv. Co. v. Pontius, 1'57 U. S. 209; 'loo Sup. Ct. Rep. 58; 39 L. Ed. 675; affirming 52 Kan. 204; 34 Pac. Rep. 739; Tul- lis V. T^-.ke Erie & W. R. R. 175 U. S. 348; 20 Sup. Ct. Rep. 130; 44 L. Ed. 192. 20 Employers' Liability Cases, 207 U. S. 463; 28 Sup. Ct. Rep. 143; 52 L. Ed. 297; decided Jan- uary 6, 1908, and citing Johnson V. Southern Pacific Co. 190 U. S. 1; 25 Sup. Ct. Rep. 158; 49 L. Ed. 303, reversing 54 C. C. A. 508; 117 Fed. Rep. 462; Schlom- mer v. BulFalo, Rochester, etc., Rv. 205 U. S. 1; 27 Sup. Ct. Rep. 407; 51 L. Ed. 68, reversing 207 Pa. St. 198; 50 Atl. Rep. 417. The question of the constitu- tionality of tiiis statute lias been practically foreclosed in this lan- guage used in a subsequent case: "In this case [the Employers' Lia- bility case] the court sustained the authority of Congress, under its power to regulate interstate commerce, to prescril)e the rule cf liability, as iK'tween interstate carriers and its employees in such interstate commerce, in cases of personal injuries received by em- ployees while actually engaged in sucli conimeree." Adair v. United States, 208 U. S. Itil, 178; 28 Sup. Ct. Rep. 277; 5i2 L. Ed. 436, reversing 152 Fed. Rep. 737. The act is constitutional. Mon- don c. New York, X. H. & R. R. Co., 3'2 Sup. Ct. 32; St. Louis, I. M. & S. Rv. Co. V. Conlev, 187 Fed. 949 ; " Walsh v. Xew' York, X, II. & H. R. Co. 173 Fed. 494; Watson v. St. Louis, I. M. & S. R. Co. 169 Fed. 912: Zikos v. Oregon R. & X. Co. 179 Fed. 893; El Paso & X. E. Rv. Co. v. Gutier- rez, 215 U. S. 87; 30 Sup. Ct. 21; 54 L. Ed. 106; 37 Wash. L. Rep. 782; anirming 117 .S. W. 436, ■which reversed (Tex. Civ. App.), 117 S. W. 159, and approved Hyde V. Southern Ry. Co., 31 App. D. C. 400. Section three has been held valid. IMcXamera v. ^Vashington Termi- nal Co., 35 App. D. C. 230; Pot- ter V. Baltimore & 0. R. Co. 37 Wash. Law Rep. 46G [Soc also Mc- Guire v. Chicago, B. & 0. Ry. Co. 131 Iowa, 340; 108 X. W. 902, on the validity of a state statute.] In one case it was decided that Con- gress has authority to prescribe rules of liability as between an in- terstate carrier and its employees in interstate commerce in case of injury Uy the employee while ac- tually engaged in such commerce; CONSTITUTIONALITY OP STATUTE. 23 § 12. Constitutionality of Wisconsin and Nebraska Stat- Utes. — The statute of Wisconsin allowing a recovery where the plaintiff has contributed to his injuries by his negli- gence, but apportioning the damages according to his neg- ligence which contributed to the injury, has been held consti- tional. It is not void because it applies only to railroads; nor is it void because it exempts office and shop employees from its provisions.^"* So the Nebraska statute has been held valid.-^t that the Act of June 22, 1908, does not attempt to delegate judi- cial power of the United States to state courts, in violation of Article 3 of the Constitution, but creates substantive rights not solely cog- nizable in the Federal courts, but which may be availed of in any court of competent jurisdiction, state or Federal; that the Act is not invalid because it results in establishing rules and measures of liability in cases to which it ap- plies, different from those whidi exist under the state laws in other cases arising from the relation of master and servant, nor because it gives a right of recovery in case of the death of an employee to different parties; that whether or not the Act isi effective to carry out the purpose intended, and thus promote interstate commerce, is a legislative and not a judicial ques- tion, which cannot affect the con- stitutional power of Congress to enact it; and that the Act is not unconstitutional as denying the equal protection of the laws to the carriers affected thereby. If sec- tion 5 was invalid, it was held that its invalidity would not af- fect the remainder of the Act. Zikos V. Oregon R. & N. Co. 179 Fed. 893. In the case of Hoxie v. New York, N. H. & H. R. Co. 82 Conn. 352; 73 Atl. 754, almost every line of the Act was held to be un- constitutional. That was a suit brought in a state court to recover damages. The Supreme Court held that a state court had no jurisdic- tion of such an action — one brought under the statute — and then in its eagerness to strike down the Act violated a practi- cally universal practice — never to pass upon the constitutionality of a statute unless necessary to a disposal of the case, especially so if the court had no jurisdiction of the action brought — and held the entire Act unconstitutional. The prejudice of the writer of that opinion against Federal legislation is manifest throughout the ©pinion. Because of this opinion Congress, in 1910, amended the Act ex- pressly giving state courts juris- diction. See also INIondon v. New York, etc., R. Co. 82 Conn. 373; 73 Atl. 762; reversed 32 Sup. Ct. 160 29* Kiley V. Chicago, M. & St. P. Ry. Co. 145 Wis. 326; 12i8 N. W. 982 ; Kiiley v. Chicago, M. & St. P. Ry. Co. 138 Wis. 21o; 119 N. W. 309; 120 N. W. 756; Ladd v. Min- neaixilis, St. P. & S. S. M Ry. Co. 142 Wis. 165; 125 N. W. 468. 29t Swoboda v. Union Pacific R. Co. 87 Neb. 200; 127 N. W. 215; Missouri Pacific Ry. Co. v. Castle, 172 Fed. 841. This Nebraska stat- ute coders the case of a railway company's servant employed in the water supply department and en- gaged in drilling a well to be Tised in supplying its locomotives with water. ]Metz v. Chicago, B. & Q. R. Co. 88 Neb. 459; 129 N. W. 994. 24 FEDERAL employers' LIABILITY ACT. § 13. Invalidity of Act of 1906.— The ground of the de- cision ^° of the Supreme Court was that matters pertaining to the state and those pertaining to the Federal Government The validity of the Act of inOG had been before the lower courts, and in four cases had been held constitutional. The reasoning of these cases upholds the claim that Congress has the power to enact a statute on the subject; and upon that question may be considered authoritative, though, as applied to the ground upon which that act was held invalid, they cannot be so considered. They are Spain v. St. Louis, etc., R. Co. 151 Fed. Eep. 522, from the Eastern Dis- trict of Arkansas, decided March 13, 1907; Snead v. Central Georgia Ry. Co. 151 Fed. Rep. 608, from the Southern District of Georgia, decided March 25, 1907; Plummer v. Northern Pacific Ry. Co. 152 Fed. Rep. 206, from the Western District of Washington, decided March 2, 1907. and Kel- ley V. Great Northern Railway Co. 152 Fed. Rep. 211, from the Dis- trict of Minnesota, decided March 11, 1907. None of these cases make any reference to any of the others. On the other hand. December 31, 1906, the Circuit Court for the Western District of Kentucky held the statute of 1906 void, both on the ground that Congress had no power to legislate upon the sub- ject-matter as it related to inter- state commerce, and also that it was void upon the ground the Su- preme Court later held it invalid. Brooks v. Southern Pac. Co. 148 Fed. Rep. 986. A similar decision was rendered in the Circuit Court for the Western District of Ten- nessee. Howard v. Illinois Cen- tral R. Co. 148 Fed. Rep. 997, de- cided January 1, 1907. These were the two cases appealed from and affirmed as the Employer's Li- ability Cases. For cases upholding the validity of tlie Safety Appliance statute. See Johnson v. Railroad, 196 U. S. 1 ; 25 Sup. Ct. Rep. 158; 49 L. Ed. 363; affirming 117 Fed. Rep. 462; and Schlemmer v. Railroad, 205 U. S. 1; 27 Sup. Ct. Rep. 407; 51 L. Ed. 88; reversing 207 Pa. St. 198; 56 Atl. Rep. 417. See also Chicago, etc., R. Co. v. Voelker, 129 Fed. Rep. 526; S. C. 116 Fed. Rep. 867. See also speech of Congressman Henry of Texas, 60 Cong. Record, 1st Sess., p. 4427. See pp. 4428, 4429, 4430 and 4431 for report of minority holding the proposed act of 1908 unconstitutional, and pp. 4428, 4431, 4432, 4433 for speech of Congressman Littlefield of Maine, holding the bill unconsti- tutional. See also pp. 4434, 4435 and 4436 ( inserted in this work as Appendix B) of same volume, holding bill valid. For dissenting views from the majority report in favor of the bill of Congressman Parker of New Jersey, see pp. 4437 and 4438 of same volume. *" Employers' Liability Cases, 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. Ed. 297, affirming Brooks v. Southern Pac. (?o. 148 Fed. Rep. 986, and Howard v. Illinois Central Ry. Co. 148 Fed. Rep. 997. CONSTITUTIONALITY OF STATUTE. 25 were so blended that they could not be separated by the court, and, therefore, the whole act must be held void.-'^ § 14. The parts of the Act of 1906 rendering it invalid. — In analyzing the statute of 1906 and pointing out the clauses which rendered it invalid, and why it must be considered in- valid, Justice White called particular attention to the fact that the act did not confine itself to the business of interstate commerce, but sought to embrace all who engaged in inter- state commerce as common carriers, regardless of the fact that the servant injured may have had nothing whatever to do with interstate commerce or the carrier when he was in- jured, may not have been working in connection with the busi- ness of interstate commerce. In presenting this phase of the case, he said : ' ' From the first section it is certain that the act extends to every individual or corporation who may en- gage in interstate commerce as a common carrier. Its all embracing words leave no room for any other conclusion. It may include, for example, steam railroads, telegraph lines, telephone lines, the express business, vessels of every kind, w^hether steam or sail, ferries, bridges, wagon lines, carriages, trolley lines, etc. Now, the rule which the statute establishes for the purpose of determining whether all the subjects to which it relates are to be controlled by its provisions is that any one who conducts such business be a 'common carrier engaged in trade or commerce in the Dis- ^' Chief Justice Fuller and Jus- prepared to agree with what was tices White, Day, Peckham and stated in the opinion delivered by- Brewer adopted this view. Jus- Justice White. In that deter- tices Moody, Harlan, McKenna and mination Justices Harlan, McKen- Holmes hold that the invalid por- na, ]\Ioody and Holmes agreed, tions can be separated by inter- It will thus appear that six out pretation, and as so separated it of the nine judges concurred in. is valid. Justces White and the assumption that Congress Day neld that Congress had the could enact a valid statute con- power to enact a valid statute cerning the liability of employers upon the subject, while Justices of an interstate carrier for in- Brewer, Peckham and Chief Jus- juries occasioned in interstate bus- tice Fuller declared they were not iness. 26 FEDERAL EMPLOYERS' LLVBILITY ACT. trict of Columbia, or in any territory of the United States, or between the several states,' etc. That is, the subjects stated all come within the statute when the individual or corporation is a common carrier who engages in trade or commerce between the states, etc. From this it follows that the statute deals with all the concerns of the individuals or corporations to which it relates if they engage as common carriers in trade or commerce between the states, etc., and does not confine itself to the interstate commerce business which may be done by such persons. Stated in another form, the statute is addressed to the individuals or corporations who are engaged in interstate commerce and is not confined solely to regulating the interstate commerce business which such persons may do; that is, it regulates the persons be- cause they engage in interstate commerce and does not alone regulate the business of interstate commerce. And the con- clusion thus stated, which flows from the text of the act concerning the individuals or corporations to which it is made to apply, is further demonstrated by a consideration of the text of the statute defining the servants to whom it relates. Thus, the liability of a common carrier is declared to be in favor of 'any of its employes.' As the word 'any' is unqualified, it follows that liability to the servant is co- extensive with the business done by the employers whom the statute embraces; that is, it is in favor of any of the em- ployes of all carriers who engage in interstate commerce. This also is the rule as to the one who otherwise would be a fellow servant, by whose negligence the injury or death may have been occasioned, since it is provided that the right to recover on the part of any servant will exist, although the injury for which the carrier is to be held resulted from 'the negligence of any of its officers, agents or employes.' The act then being addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employes, without qualification or re- striction as to the business in which the carriers or their CONSTITUTIONALITY OP STATUTE. 27 employes may be engaged at the time of the injury, of neces- sity includes subjects wholly outside of the power of con- gress to regulate commerce. Without stopping to consider the numerous instances where although a common carrier is engaged in interstate commerce such carrier may in the nature of things also transact business not interstate com- merce, although such local business may indirectly be related to interstate commerce, a few illustrations showing the opera- tion of the statute as to matters wholly independent of inter- state commerce will serve to make clear the extent of the power which is exerted by the statute. Take a railroad engaged in interstate commerce, having a purely local branch operated wholly within a state. Take again the same road having shops for repairs, and it may be for construction work as well as a large accounting and clerical force, and having, it may be, storage elevators and warehouses, not to suggest besides the possibility of its being engaged in other independent enterprises. Take a telegraph company engaged in the transmission of interstate and local messages. Take an express company engaged in local as well as in interstate business. Take a trolley line moving wholly within a state as to a large part of its business and yet as to the remainder crossing the state line. As the act thus includes many subjects wholly beyond the power to regulate commerce and depends for its sanction upon that authority, it results that the act is repugnant to the Constitution, and cannot be enforced unless there be merit in the propositions advanced to show that the statute may be saved. ' ' ^" § 15. Congress can only legislate concerning interstate business. — In the case in the Supreme Court, an endeavor was made to uphold the Act of 1906 on the ground that "any one who engages in interstate commerce thereby sub- 32 Employers' Liability Cases, And as to the District of Colum- 207 U. S. 463; 28 Sup. Ct. Rep. bia: Philadelphia, B. & W. K. Co. 143 ; 52 L. Ed. '297. v. Tiieker, 35 App. D. C, 123 ; Mc- Tbe Act of 1906 was valid as Namara v. Washing^ton Terminal to the territories. El Paso & N. Co. 35 App. D. C. 230; Hyde v. E. R. Co. V. Gutierrez, 215 U. S. Southerti Ry. Co. 31 App. D. C. 87; 30 Sup. Ct. 21; 54 L. Ed. 466; 36 Wash. L. Rep. 374; Gold- 106, affirming 102 Tex. 378; 117 stein v. Baltimore & 0. R. Co. S. W. 426; Atchison, T. & S. F. 37 Wash. L. Rep. 2. Rv. Co. V. Mills (Tex, Civ. App.), 108 S. W. 480. 28 P^EDERAL employers' LIABILITY ACT. mits all his business concerns to the regulating of congress." To this claim the court said: "To state the proposition is to refute it. It assumes that because one engages in inter- state commerce he thereby endows congress with power not delegated to it by the Constitution ; in other words, with the right to legislate concerning matters of purely state concern. It rests upon the conception that the Constitution destroyed that freedom of commerce which it was the purpose to pre- serve, since it treats the right to engage in interstate com- merce as a privilege which cannot be availed of except upon such conditions as congress may prescribe, even although the conditions would be otherwise beyond the power of congress. It is apparent that if the contention were well founded it would extend the power of congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Constitution, and would destroy the authority of the states as to all conceivable matters which from the beginning have been, and must continue to be, under their control so long as the Constitution endures." ^' § 16. Effect of Act of 1908 on State Legislation.— A ques- tion of great importance is, "What is the effect of the Act of 1908 upon state legislation, where the business of inter- state commerce is involved?" Before the passage of either the Act of 1906 or that of 1908, many states had enacted statutes which applied in terms to carriers engaged in inter- state commerce, and even to carriers Avhen engaged in the business of interstate commerce; recoveries had been allowed by employes in many instances where they received their injuries while engaged in such business. As congress had not yet legislated upon the subject, fewer difficulties were presented than there are now. The legislation of 1908 is so much broader in many of its most vital provisions that " Employers' Liability Cases, 207 U. S.^fi.*?; 28 Sup. Ct. Rep. 143: 52 L. E<1. 297. CONSTITUTIONALITY OF STATUTE. 29 few occafiions will probably present themselves; nevertheless, the question is an important one. This question under the Act of 1906 was discussed but not decided.^* No question seriously arises where a state statute and the Act of 1908 cover the same incident or injury: that the latter will control and the former must give way.^'' There is a line of cases which hold that where a state statute amounts to the regu- lation of interstate commerce, yet local in its character, it can be sustained by reason of the absence of congressional legislation in respect thereto.^** In one case, speaking of quarantine regulations, the Supreme Court of the United States has said: "It may be conceded that whenever con- gress shall undertake to provide for the commercial cities of the United States a general system of quarantine, or shall confide the execution of the details of such system to a National Board of Health, or to local boards, as may be found expedient, all state laws on the subject will be abro- gated, at least so far as the two are inconsistent. " ^'^ In another case it was said: "Generally, it may be said in respect to laws of this character that, though resting upon the police power of the state, they must yield whenever con- gress, in the exercise of the powers granted to it, legislates upon the precise subject-matter, for that power, like all other ^Hall V. Chicago, etc., Ry. Co. parte McNiel, 13 Wall. 236; 20 149 Fed. Rep. 564. L. Ed. 624; Mobile County v. «=Gulf, etc., Ry Co. v. Hefley, Kimball, 102 U. S. 691; 26 L. 158 U. S. 98; 15 Sup. Ct. Rep. Ed. 238, affirming 3 Woods, 555; 802; 39 L. Ed. 910. Fed. Cas. No. 7,774; Packet Co. v. ^« Such are Railroad Co. v. Ful- Cattlesburg, 105 U. S. 559 ; 26 ler, 17 Wall. 560; 21 L. Ed. 710; L. Ed. 1; Transportation Co. v. Wilson V. Blackbird, etc., Co. 2 Parkersburg, 107 U. S. 691; 2 Pet. 245; 7 L. Ed. 412; Cooley v. Sup. Ct. Rep. 732; 27 L. Ed. 584; Philadelphia Port Wardens, 12 Escanaba Co. v. Chicago, 107 U. S. How. 299; 13 L. Ed. 996; Penn- 678; Morgan v. Louisiana, 118 U. sylvania v. Wheeling, etc., Bridge, S. 455; 6 Sup. Ct. Rep. 1114; 30 18 How. 421; 15 L. Ed. 435; L. Ed. 237; affirming 36 La. Ann. Brig James Gray v. Ship John 066. Eraser, 21 How. 184; 16 L. Ed. ''Morgan v. Louisiana, supra, 106; Gilman v. Philadelphia, 3 quoted in Gulf, etc., R. Co. v. Hef- Wall. 713; 18 L. Ed. 96; Ex ley, supra. 30 FEDERAL EMPLOYERS' LLVBILITY ACT. reserved powers of the states, is subordinate to those terms conferred by the Constitution upon the nation." =^^ In an earlier case it was said: "It is said, however, that, under the decisions of this court, there is a kind of neutral ground, especially in that covered by the regulation of commerce, which may be occupied by the state, and its legislation be valid so long as it interferes with no act of congress or treaty of the United States. Such a proposition is supported in the passenger cases,^^ by the decisions of this court in Cooley V. The Board of Wardens,'^'^ and by the cases of Crandall v. Nevada,^^ and by Gilmer v. Philadflphia.*' But this doc- trine has always been controverted in this court, and has sel- dom, if ever, been stated without dissent. These decisions, however, all agree, that under the commerce clause of the Constitution, or within its compass, there are powers, which, from their nature, are exclusive in Congress; and, in the case of Cooley v. The Board of Wardens, '^^ it was said, that 'whatever subjects of this power are in their nature national, or admit of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.' A regulation which imposes oner- ous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character." ^* § 17. Effect of Act of 1908 on State Legislation, con- tinued. — The cases from which these quotations are made (l(j not necessarily settle the question ; for the subject of interstate commerce under the decisions has greatly expanded in the last twenty years. INIany of the cases discussing the subject have resulted in distinctions being drawn concerning what are and what are not acts of interstate commerce; and, "Gulf, etc., Ry. Co. v. Hefley, "=.•? Wall. 713. supra. *^ ^u]ir. v. Alabama, " New York, etc., R. Co. v. New 128 U. S. 96; 9 Sup. Ct. Rep. York, 165 U. S. 628; 17 Sup. Ct. 28; 32 L. Ed. .352; affirming 83 Rep. 418; 41 L. Ed. 853; aflirm- Ala. 71; 3 So. Rep. 702. ing 142 N. Y. 646; 37 N. E. Rep. "Erb V. Morasch, 177 U. S. 568. CONSTITUTIONALITY OP STATUTE. 33 from one state to another had been taken over by Congress and a system devised by which such stock could be excluded or their transportation so regulated as not to endanger the inhabitants or property of the receiving state, all local regu- lations would cease and remain suspended until the Federal statute was repealed and the Federal control abandoned.^*' § 18. Result of decisions. — If it be construed that the Federal Employers' Liability Act covers every instance of any person suffering an injury while he is employed "in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states and territories, or between the District of Columbia or any of the states or territories and any foreign nation," then all state regula- tions — at least those changing or modifying the common law liabilit}' — are void, because Congress has manifested a desire and has covered the whole subject so far as giving a statu- tory action is concerned. The entire question resolves itself into a matter of construction. A careful reading of the statute would seem to indicate that Congress had covered the entire subject of liability of an interstate railroad company for negligence to its employe engaged in interstate commerce ; and that is the consensus of opinion of those who have care- fully examined the statute.^^ ^"Missouri, etc., Ry. Co. v. Ha- passengers on the train must be ber, 109 U. S. 613: 18 Sup. Ct. interstate passengers before it Eep. 488; 42 L. Ed. 878; affirming can be said that tlie train is an 56 Kan. 604 ; 44 Pac. Rep. 632 ; interstate train or those employees Eeid V. Colorado, 187 U. S. 137; in charge of it are employed in 23 Sup. Ct. Rep. 92; 47 L. Ed. interstate commerce, must impress 108; Rasmussen v. Idaho, 181 U. any one as an impracticable rule S. 198; 21 Sup. Ct. Rep. 594; 45 and one that nullifies the act in L. Ed. 820; affirming 7 Idaho, its practical workings. If such a 1; 52 L. R. A. 78; 97 Am. St. rule were adopted the act would Eep. 234; 59 Pac. Rep. 933. scarcely be worth the paper on Any attempt to classify the which it is written; and besides, questions by the adoption of a no reason can be assigned why rule that a majority of the freight such a rule should be adopted, carried on the train must be inter- " It is clear, from the debates, state freight or a majority of the that many of the Senators 34 FEDERAL EMPLOYERS LIABILITY ACT. § 19. Must interstate employee bring his action on the statute, — If the act of Congress is exclusive, must an employee engaged in interstate commerce, when injured, bring bis action upon the statute? This is a very important entertained the notion that the act would nullify all state legis- lation upon the same subject so far as it related to employees en- gaged in interstate commerce. In discussing the subject, Senator Bacon said: "My proposition is this — and as a proposition of law I do not think I can possibly be mistaken in it — that whenever the Congress of the United States has jurisdiction to enact a law for the regulation of interstate commerce, it necessarily nullifies the law of a state passed upon the same sub- ject, and that when you pass this law no law of any state prescrib- ing the rules of liability for an employee engaged in interstate commerce is any longer of any force or effect. That is necessar- ily so, and whether it can be en- forced in a state court or in a federal court, the law thereafter must be this law and no other law. The day it is passed every state law which prescribes a rule of li- ability for an employee engaged in interstate commerce is annulled, and it is the same as if it liad been tlie repeal of tlie law of tlic state." Senator Beveridge: "Our power is exclusive when we act." Senator Bacon : "Absolutely so. There is no douI)t about that in tlie 'orld. It i. only a question of jurisdiction to act." Senator Beveridge: "Certainly." Senator Bacon: "If we have the jurisdiction to act, and do act, the federal law is supreme, and it nullifies every state law on the subject." Senator Clay: "My idea was that when the bill should become a law all laws in the state fixing the rule of liability of common carriers engaged in interstate com- merce would be superseded by vir- tue of this law, and whenever an employee proceeds against a rail- way company for injuries suffered, he must look to this statute to fix the rule of liability, and not to the statute of the state." Senator Borah : "If a party is engaged at the time of his injury in interstate commerce, his rights and obligations must undoubtedly be settled by the law which we shall pass. If he should be en- gaged in state commerce or inter- state commerce, the state law would obtain. In other words, this proposed law would only annul the state law in so far as it affects interstate commerce." Senator Clay: "I think the Sen- ator is eminently correct. The statute of Georgia, fixing a liabil- ity against railroad companies in favor of employees relating to commerce witiiiu the state would not be changed by the passage of this statute. It would simply affect the employees engaged at the time of the accident in inter- state commerce. I do not think there is any question about that." C)0 Cong. Record, 1st Sess., pp. 4528, 4529. CONSTITUTIONALITY OF STATUTE. 35 question, and it has been answered. Since the act of Con- gress repeals or suspends state legislation within the scope of its provisions such an employee must bring his action upon the statute, and if he does not he will be defeated. ^^* It is now settled by several cases that the statute "was intended by Congress to cover the entire subject-matter of the lia- bility of carriers by railroad while engaged in interstate commerce to employees if the employee injured or killed is at the time engaged in such interstate commerce, and that it is plenarj'- and supersedes all other law relating to such liability;" and the court added: "Consequently this action, founded on a State statute, can not now be maintained." The action had been brougiit on a state statute, but the railway company insisted that, as the deceased was a loco- motive engineer engaged at the time of his injury in moving interstate traffic, it should have been brought upon the Fed- eral statutes; and the court upheld its contention.^^^ In an- other case it was said: "It is clear that the [Federal] Act ■of April 22, 1908, superseded and took the place of all state statutes regulating relations of employers and employees engaged in interstate commerce by railroads. It covered not only injuries sustained by employees engaged in that commerce resulting from the negligence of the master and his servants, and from defects in the designated instru- mentalities in use in that commerce, but also dealt with contributory and comparative negligence and assumed risk, 51* If the pleading does not show showed that the plaintiff was not that the plaintiff was engaged in engaged in interstate commerce interstate commerce, but the evi- when injured, the verdict must be d'ence develops the fact that he for the defendant; and no answer was, then there would be a fatal or plea to that effect is necessary, variance that would defeat him Ria Dewberry v. Southern Ey. Co. unless the complaint or declara- 175 Fed. 307. This view has been tion was amended. The defendant held in the following cases: Tay- could file an answer or plea lor v. Southern Ry. Co. 178 Fed. setting up the fact that he was so 380; Bottoms v. ;St. Louis & S. F. engaged which would present an R. Co. 179 Fed. 318; Zikos v. issue for the jury; and if proven Oregon E. & N. Co., 179 Fed. 893; the verdict must be for the de- Fithian v. St. Louis & S. F. Ey. fendant. Co. 188 Fed. 842; The Passaic, iSo if there M^as a declaration 190 Fed. 644. upon the statute, but the evidence 36 FEDERAL EMPLOYERS' LIABILITY ACT. making in certain eases, at least, the master an insurer of the safety of the servant while in his employment in that commerce. It covers and overlaps the whole state legisla- tion, and is therefore exclusive. All state legislation on that subject must give away before that act." ^'■^ Nor can a state or territorial statute be resorted to in order to defeat the cause of action given by the Federal statute."^° After quoting section two of the Federal Act, it was said in one •case: *'IIere, then, is an act of Congress, enacted for the purpose of enabling employes of common carriers by rail- road to recover damages for injuries suffered by them while employed by the common carriers in the territories. The section of the act quoted has specific application to the territories, and, being the supreme law of the land, super- sedes all other laws embracing the same subject-matter." The court then makes a short analysis of the statute, and adds: "When the act is analyzed, it becomes apparent that it was the purpose of Congress to confer rights and benefits upon the injured employee which were denied him by the ■common law, and hence the existence of a common law right of action on the part of an injured employee cannot, in reason, be claimed in the presence of this act of Congress. Indeed, the act is the law, and the only law ^^^ under w^hich suits like the present one may be brought. It is the law 51b Fulgham v. Midland E. Co. 117 S. W. 430; Clark v. Soiithorn 167 Fed. 660. It was held tliat in Pacific Co. 175 Fed. 122; Nashville, this ca,se, the action having heen C. & St. L. Ry. Oo. 128 U. S. brought upon the Federal statute, 96; 9 Sup. Ct. 28; 32 L. Ed. 352. resort could not be had to the In the last case Justice Field says: Arkansas statute to enable the "It is conceded that the power of administrators of an interstate Congress to regulate interstate commerce employee to enforce the commerce is plenary; that, as in- employee's right of action, it liav- cident to it, Congress may legislate ing died with him, because tlie as to the qualification and liabili- Federal statute gave no right of ties of employees and others on action to his personal representa- railway trains engaged in that tives. Walsh v. New York, N. H. commerce; and that such legisla- & H. R. Co. 173 Fed. 494. tion will supersede anj^ state f^ic Southern Pacific Co. v. Mc- action on the subject." Ginnis, 174 Fed. G49; El Pafgo & sui Tliis was an action brought N. E. Ry. Co. V. Gutierrez, 215 to recover damages for an injury XJ. S. 87; 30 Sup. Ct. 21; 54 L. sustained in a territory. Ed. 106, affirming 102 Tex. 376; CONSTITUTIONALITY OF STATUTE. 37 of the ease, by whieli the rights of the employee and the liability of the carriers are measured. The very subject- matter of the controversy is federal.'"^® § 20. Act of 1906, validity in District of Columbia and Territories. — The act of 1906 was held invalid also as to a cause of action arising in the District of Columbia." And the same holding was made with respect to the territories.^^ § 21. Construction of statute. — As this statute was enacted for the benefit of the employe, and is an implied decla- ration on the part of the Congress that the old and harsh rules of the common law were inadequate for the protection of his life and limbs when applied to the new and changed condi- tions of industrial life under which he is compelled to render services in order to gain a livelihood, and thereby not become a burden on the public for support in case of his injury, it is to be liberally construed so as to e;u*ry out the intention of the legislature. The argument of hardship upon the railroad com- pany is not to be considered. That argument is plausible "only when the attention is directed to the material interest of the employer to the exclusion of the interests of the em- ploye and the public." When an injury happens to an em- ploye, there must be a hardship to him. "If its burden is transferred, so far as it is capable of transfer, to the em- ployer, it is a hardship to him. It is quite conceivable that Congress, contemplating the inevitable hardship of such in- sieCound V. Atchison, T. & S. A state court has held that the F. Ry. Co. 173 Fed. 527; Taylor action must be brought under this V. Southern Ry. Co. 178 Fed. .380. statute where the employee is in- "There is a count in the declara- jured in the forwarding of inter- tion omitting tlie .statement that slate traffic. Bradbury v. Cliicago, the petitioner and defendant com- R. I. & Pac. Ry. Co. 149 Iowa, 51; pany were engaged i)i interstate 128 N. W. 1. oommerce at the time of the 52 Hyde v. 'Southern Ry. Co. 31 alleged injury, the Employer's Lia- App. D. C 46i0. But see same bility Act, superseding all other case, 36 Wash. L. Rep. 374. law, will be controlling on the ques- 53 Atchison, etc., Ry. Co. v. tion of the jurisdiction of this Mills, 49 Tex. Civ. App. 349, 108 oouTt and the right of removal." S. W. Rep. 480. Bottoms V. St. Louis & S. F. R. Co. 179 Fed. 318. 38 FEDERAL EMPLOYERS* LIABILITY ACT. juries,^* and hoping to diminish the economic loss to the com- munity resulting from them, should deem it wise to impose their burdens upon those who would measurably control their causes, instead of upon those who are in the main helpless in that regard. "^^ In construing the Safety Appliance Act, Chief Justice Fuller said: "The primary object of the act was to promote the public welfare by securing the safety of employes and travelers, and it was in that aspect that it was remedial, while for violations a penalty, one hundred dol- lars, recoverable in a civil action, v/as provided for, and in that aspect it was penal. But the design to give relief was more dominant than to inflict punishment, and the act might well be held to fall within the rule applicable to statutes to prevent fraud upon the revenue, and for the collector of customs, that rule not requiring absolute strictness of con- struction." ^'^ Of course, in the Federal Employers' Liabil- ity Act no quasi offense is involved — only a civil liability; but the above quotation, aside from reference to the penal offense, is quite applicable. "The statute is remedial in the character, and it should 'be so construed as to prevent the mischief and advance the remedy."-" In another case it was said: "The statute in question, while it is remedial in the sense that it affects the remedy in accident cases, is not of the nature of those remedial statutes which liave re- ceived a liberal and expansive application at the hands of the court, such as statutes intended to remedy a mischief, to promote public justice, to correct innocent mistakes, to cure irregiilarities in judicial proceedings, or to give effect to the acts and contracts of individuals according to the intent thereof." °* 54 Injury bv unlawful couplings. R. Co. 177 Fed. SOU; United States 5.'. St. Ix>iiis, etc., Kv. Co. V. Tav- v. Chicago, R. I. & P. Rv. Co. 173 lor, 210 U. S. 210; ''28 Sup. Ct. Fed. 684. Rep. 616; 52 L. Ed. 1061. "St. Louis, M. & S. Ry. Co. v. 56 .Tolmson v. Southern Pac. Ry. Conley, 187 Fed. 940. Co. 196 U. S. 1; 2.5 Sup. Ct. Rep. ss Winfree v. Southern Pacific 158: 40 L. YA. .363, reversing 117 Rv. Co. 173 Fed. 65- Fulgham v. Fed. Rep. 462; 54 C. C. A. 508; Midland Valley R. Co. 167 Fed. United States v. Illinois Central 660. CHAPTER III. TO WHAT RAILROADS STATUTE APPLIES. SECTION" SECTION 22. Carriers within territories. 25. "While engaged in commerce 23. Carriers engaged in interstate between the states." oommerce. 26. Illustrations on interstate 24. Interurban and street railway commerce transactions. common carries. § 22. Carrier within Territories.— Congress has plenary power in all matters pertaining to the territories, the Dis- trict of Columbia, the Panama Canal Zone, and other pos- sessions of the United States. A common carrier by railroad in such divisions of the United States is liable "to any per- son suffering injury while he is employed by such carrier in any of said jurisdictions." The statute, of course, covers the territory of Alaska, the District of Columbia, Porto Rico, Hawaiian Islands and the Philippine Islands. § 23. Carriers engaged in interstate commerce. — The common carrier must be one "by railroad." No other com- mon carrier is covered by the statute. It must be a " common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations." Therefore, any railroad company carry- ing commercial products from one state to another, or from a state to a territory or vice versa, or from a state to the 39 40 FEDERAL EMPLOYERS' LIABILITY ACT. District of Columbia or vice versa, or from a state or terri- tory to a foreign nation, as to New Mexico or to Canada, or to British Columbia, comes within its provisions. So if a com- mon carrier by railroad carry commercial products from the interior of a state bordering on the seashore and then load it upon its own ocean going vessels and carry it to a foreign port, it would be engaged in commerce between such state and a foreign nation ; and likewise it would be so engaged even though it did not have its own vessels if it undertook to secure their transportation across the ocean to a foreign port. But if it only undertook to transport and deliver them to a consignee at the seaport, and such consignee was to for- ward them to a foreign nation, it would not be engaging in commerce between a state and a foreign nation. Yet if it ac- cepted goods billed and addressed to a foreign nation and undertook to deliver them to a company or vessel engaged in transporting articles to the port of the destination of such goods it would be engaged in commerce between a state and a foreign nation.^ Difficult questions necessarily arise when a question not purely of interstate commerce is involved. The Safety Appliance Act, however, affords a reasonable analogy and in a measure solves some of the questions that arise. That statute provides that "any common carrier engaged in interstate commerce by railroad" shall equip its cars with automatic couplers. The Employers' Liability Act applies to a "common carrier by railroad while engaging in com- merce between any of the several states." There is prac- tically no difference in meaning between these two phrases of these two statutes so far as designating the common carriers to which thej' are applicable. Under the Safety Appliance Act it has been held that a railroad wholly Avithin a state- not even so much as touching the boundary line of the state — ■ may be engaged in interstate traffic and be liable to equip its cars in accordance with its provisions.- And so it has 1 Tlie distinction is a fine ono, under the Safety Appliance Act. but it is justilicd bv tlie decisions See Sees. 173, 175. 2 See Sees. IGO, 175. TO WHAT RAILROADS STATUTE APPLIES. 41. been held that the same railroad (situated in Colorado) — a narrow gauge road — was engaged in interstate traffic when it received express packages of an express company, shipped by such express company from Kansas City, Missouri, de- livered to it within the state of Colorado, and re-shipped by transferring from the car of an interstate commerce railroad to its own narrow gauge cars, the packages being billed to a sta- tion on its road.'* On the contrary, in an instance similar to the first instance given, where a narrow gauge road, wholly within the state of Ohio, operated in connection with the Baltimore and Ohio Railroad, where the goods were of neces- sity transferred from a narrow gauge car to a wide gauge car, it was held that such narrow gauge road was not en- gaged in interstate commerce.* The latter decision is, how- ever, sharply criticised in the former decision;^ and to the author the reasoning in the Colorado case rests upon a sounder basis. So under the Interstate Commerce Act it has been held that a belt railroad, used to transfer freight cars around a city, and so prevent their transportation through said city, having connections with interstate commerce rail- roads, was subject to such act." So the movement of cars in the car yards of a railroad, such cars not being properly equipped with automatic couplers, but which had been brought by such railroad from another state, was a violation of that act.'^ Likewise it has been held that a railroad com- pany carrying from one state to another on its own construc- tion cars, its own iron rails, in cars not properly equipped with automatic brakes, was liable to the penalty of the act im- posed for using insufficiently equipped cars in interstate com- merce.^ The phrase "while engaging in commerce between any of the several states" is, especially in the light of these decisions, a very broad and far-reaching one. Of course, while transporting freight having its origin in a state to another point within the same state, not in connection with 3 See Sees. IGO, 175. e See S€c. 163. 4 See Sec. 175. 7 See Sees. 162, 164, 165. 5 See Sec. 176. 8 See Sec. 155. 42 FEDERAL EMPLOYERS' LIABILITY ACT. other freight brought from another state, would not be en- gaging in interstate commerce or commerce between the states ; and an employe of the company injured while engaged in such commerce could not come within the provisions of the statute if he was injured; but if there was a single car load of products in the train en route from another state to a point within the state of destination, that would convert the entire train into an interstate commerce relation, and the railroad company would then be engaged in commerce be- tween the states.® ' See illustrations of Justice White quoted in Section 13. This phase of the subject did not escape the attention of the able lawyers in the Senate. This debate took place in part in the Senate : Senator Bacon: "Now, I want to ask the Senator a question by way of illustration. Of course, never mind how large a train may be and how full of goods it may be, all the balance of it may be intrastate freight, but if upon that train there is one single box that is to cross the line, it makes the train engaged in interstate com- merce. I want to illustrate it to the Senator [Dolliver of Iowa] by a concrete case. We will sup])ose thnt a train starts from Richmond [Va.] to Alexandria [Va.]. These are ter- minal points for the train. It has freight consigned exclusively to Alexandria or to points between Richmond and Alexandria. That makes it altogether out of the jurisdiction of this bill; but if at Orange Court House [Va.], on the way, a man puts on it a box of cigars which is consigned to a party in Baltimore, that would immediately change the character of the train, would it not, and make it after that a train en- gaged in interstate commerce?" Mr. Dolliver: "I will say to the Senator, if I understand correctly the decisions of the Supreme Court, that they are to the effect that a railroad that is entirely within a state, but carrying commerce destined to points outside the state, is engaged in interstate commerce and is subject to the in- terstate commerce act." Mr. Bacon: "That is a clear statement of the law. Then I am correct in the suggestion that on a train leaving Richmond and coming to Alexandria, those being .terminal ])oints, having no freight except for Alexandria and inter- mediate points, if, when it reached Orange Court House, a box of cigars was put on it, consigned to Baltimore, it would be converted at once from a train not subject to the provisions of this act into one that is subject to it. Am I not correct in that, I ask the Sen- ator from Iowa? I am correct in the conclusion that at Orange Court House it will lie converted into a train, employees of which would become engaged in inter- state commerce, and everything TO WHAT RAILROADS STATUTE APPLIES. 43 § 24. Intemrban and street railway common carriers. — An interesting phase of the question now under discussion is that pertaining to common carriers by the so-called inter- urban electric railways and by street railways. The former partake more of the character of a common carrier by steam railroad than the latter, and in principle do not differ from them. It is beyond discussion that the statute includes all common carriers by electric interurban railroads when en- gaged in interstate commerce. There are many instances, also, where common carriers by street railroads pass from one state to another and carry passengers across state lines. Such is the case between Kansas City, Missouri, and Kansas City, Kansas; so between New Albany and Jeffersonville, Indiana, and Louisville, Kentucky; so between Cincinnati, Ohio, and Covington, Kentucky ; so between the District of Columbia and Alexandria, Virginia; and so between Niagara would be subject to this law at this point, and from there to Alex- andria." Mr. Dolliver: "I have no doubt that is true." Mr. Bacon: "Very well. The point I want to ask the Senator is this: If on the line of road be- tween Richmond and Orange Court House an accident occurs, the rule of liability would be determined by the law of Virginia, because there would be no interstate com- merce; but after the box of cigars had been put on at Orange Court House if an accident and an injury occurred between there and Alex- andria, although it was the same train and the same crew and the same people, the rule of liability would be determined by this law. If the injury was incurred before the train reached Orange Court House, the case would go into the Ftate court, and be determined by Virginia law. But after the box of cigars had been put on the train at Orange Court House, if an injury occurred to the crew of the same train, the case would go into the federal court and be de- termined by the act of Congress as to the rule of liability. Am I correct in that?" Mr. Dolliver: "If the court will agree with the judgment of the Senator." Mr. Bacon: "I just simply wished to know the opinion of the Senator. These are intricacies of the law which I thought it was well the Senator should inform us about." Mr. Dolliver: "All those ques- tions have been discussed in the court and the laws between inter- state and state commerce fairly well defined." Mr. Bacon. "That would be the effect in this particular case." 60 Cong. Record, 1st Sess., p. 4547. See, also, Horton v. Sealward Air Line R. Co. (N. C.) 72 T?. E. 958. Just how far the holding of the United States Supreme Court in Sec. 159 will be followed is difficult to say. In that case it was held that if a railway company made its railroad "a highway of interstate commerce," then an empty ear moved wholly within a state over such railroad 44 FEDERAL EMPLOYERS' LIABILITY ACT. City, New York, and Canada. Other illustrations might be named. These several common carriers by street railroads are beyond question common carriers by railroad ; and when transporting passengers (or even freight as they sometimes do) from one state to another are beyond question common carriers engaged in interstate commerce. The Federal Em- ployers' Liability Act clearly applies to them; and the employes of such street railways while engaged in the trans- porting of such passengers (and freight), if injured, can in- voke the provisions of this statute in securing redress for their injuries.^" It should not be forgotten that street rail- way companies are always in other matters treated as common carriers.^"* ^25. "While engaging in interstate commerce between the states. "—Llore than fifty years ago the Supreme Court decided a case involving interstate commerce which is in- structive in this connection, and which was relied upon in the Colorado. decision. ^^ We make the following quotation from the earlier case in this connection : "In this case it is admitted that the steamer was engaged in shipping and transport- ing down Grand River goods destined and marked for other states than Michigan, and in receiving and transporting up the river goods brought within the state from without its limits but inasmuch as her agency in the transportation was en- tirely within the limits of the state, and she did not run in connection with, or in continuation of, any line of vessels porting goods destined for other states, or goods brought was engaged entirely in domestic Qommerce. But this con- was subject to the Safety Appli- not apply to the equipment of an ance Act of 1893, and must be interstate electric railroad, so as equipped as that statute required to require automatic couplers on cars used in interstate traflic. See, the cars Avhere such cars are not also, Southern Ry. Co. v. United used in trains. Campbell v. Spo- States, 222 U. S. — ; 32 Sup. kane & I. E. R. Go. 188 Fed. 516. Ct. 2; 56 L. Ed. — , and Horton J"* Omaha & C. B. St. Ry Co. V, Sealward Air Lino R. Co. (X. v. Inter. St. Com. Co. 191 Fed. C.) 72 S. E. 958, where an appli- 40. 'See Wilson v. Rock Creek R. cation of the safety appliance cases Co. 7 Interstate Commerce Rep. 83, was made to a case of negligent and West End Improvement Club injury under this statute. v. Omaha & C. B. Ry. & R. Co. 10 It has been held that the 17 Interstate Commerce Rep. 239. Federal Safety Appliance Act does n See Sees. 160, 175. TO WHAT SAnjROADS STATUTE APPLIES. 45 elusion does not follow. So far as she was employed in trans- portings goods destined for other states, or goods brought from without the limits of Michigan and destined to places within that state, she was engaged in commerce between the states, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that com- merce, for whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the ex- tent in which each agencj^ acts in that transportation, it is subject to the regulation of Congress. It is said that if the position here asserted be sustained, there is no such thing as the domestic trade of a state ; that Congress may take the entire control of the commerce of the country, and extend its regulations to the railroads within a state on which grain or fruit is transported to a distant market. We answer that the present case relates to transportaion on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over inter- state commerce when carried on by land transportation. And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the states, when that agency extends through two or more states, and when it is confined in its action entirely within the limits of a single state. If its authority does not extend to an agency in such commerce, when that agency is confined Avithin the limits of a state, its entire authority over interstate com- merce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a state, and leaving it at the boundary line at the other end. the Federal jurisdiction would be entirely 46 FEDERAL EMPLOYERS' LIABILITY ACT. ousted, and the constitutional provision would become a dead letter."'- Where a railroad wholly within the State of Georgia transported freight originating in Cincinnati, Ohio, over line to its destination, upon through bills of lading, a through charge and assignment of the entire charge among the roads contributing to the movement having been entered into, the Georgia railroad, was held to be engaged in inter- state commerce/-* § 23. To whom common carriers by railroad liable.— It is clear that a common carrier by railroad is not liable under the statute to any one except its employes. The statute has »=The Daniel Ball, 10 Wall. 507; 19 L. Ed. 1)!)!), reversing Brown, Admr, Cas. 1!)3; Fed. Cas. No. 3,564. ^-'* Cincinnati, etc., R. Co. v. Interstate Commerce Commission, 102 U. S. 184. For an illustration where, the facts being very simi- lar, the state road was held not to be engaged in interstate commerce, see Gulf, etc., R. Co. v. Texas, 204 U. S. 403; 24 Sup. Ct. Rep. 360; 51 L. Ed. 540; affirming 97 Tex. 274. An employee engaged in taking goods, shipped from another state, from the car, in which they were transported, across the station platform to the freight depot, is engaged in interstate commerce transportation. Rhodes v. Iowa, 170 U. S. 412. Coal brought from bej'ond the staite does not cease to be interstate transportation until actually delivered to the con- signee. McNeill v. Southern Ry. Co. 202 U. S. 543; 26 Sup. Ct. Rep. 722; 50 L. Ed. 1142. But a cab owned by a railroad and used to carry pasengers from a ferry to its hotel is not used in interstate commerce. Pennsyl- vania Ry. Co. v. Knight, 192 U. S. 21, the court saying: "If a cab which carries passengers from tlie hotel to the ferry landing is engaged in interstate transporta- tion, why is not the p(jrtc'r who carries the traveler's trunk from his room to the carriage also en- gaged? If the cab service is in- terstate transportation, are the drivers of the cabs and the deal- ers who supply hay and grain for the horses, also engaged in in- terstate commerce, and where will the limit be placed? We are of the opinion that the cab service is an independent local service, preliminary or subsequent to any interstate transportation." Per- haps the gathering of freight from the place of business of shippers and distributing freight to such places of business by vehicles em- ployed by a railroad does not make the carriage between such place of business and the freight station of the carrier a part of an interstate journey. Interstate Commerce Commission v. Detroit, etc., R. Co. 167 U. S. 633; affirm- ing 74 Fed. Rep. 833 ; reversing 57 Fed. Rep. 1005. Judge Oooley, in an address before the First General Confer- ence of Railroad Commissioners, at Washington, D. C, i\rarch, 1889, said: "But there is scarcely a line of railroad in the country so short or so insignificant thi-vt the method in which its operations sliall be conducted is not of some- thing more than local importance, or the character of its regulation of some concern to business- in- TO WHAT RAILROADS STATUTE APPLIES. 47 § 26. Illustrations on Interstate Commerce Transactions. — A company eng-aged in the business of imparting instinie- tion "by means of correspondence through the mails be- tween the company at its office * * * and the applicant at his residence in another state" is engaged in interstate com- merce. ^"^ So the transmission of intelligence from state to state by the telegraph is interstate commerce.^^^ To con- stitute interstate commerce it is not necessary that the carry- ing company should own the products or materials it carries ; and the fact that it does not does not change the rule ; ^^° and it is immaterial that the shipment is interrupted in transit at the state line.^-*^ A railroad is engaged in inter- state commerce the instant it begins the carriage of an article from one state to another; and the character of the commerce continues without cessation until it reaches its destination.^^'^ Participation by a carrier in the transporta- tion of goods destined from a place in one state to another terests beyond tlie state limits. It may be a link in a long line extending through two or more states. It may be the principal or perhaps the sole means of trans- portation for the product?? of a mine or other important industry which supplies many states, but whether of greater or less impor- tance, it has relations to other roads which are not and can not be wholly limited within any polit- ical divison of the eountiy, how- ever extensive it may be; even the little Catskill Mountain Railroad, by the issue of coupon tickets to San Francisco, may, in a sense, become a part of a transcontinental highway, and the citizen from the Pacific Coast who applies for one of the tickets has an interest in the treatment he shall receive in respect to it, which is precisely the same that it would be if all the roads of the country were one in ownership and in management." 12a International Text Book Co. V. Pigg. 217 U. S. 91; 30 Sup. Ct. 481 ; 54 L. Ed. 678. 12b Pensacola Tel. 'Co. v. Western, 96 U. S. 1 ; 24 L. Ed. 708 ; West- ern Union Tel. Co. v. Pendleton, 122 U. S. 347; 7 Sup. Ct. 1126; 30 L. Ed. 1187; reversing 95 Ind. 12; Butler Bros. Shoe Co. v. United States Rubber Co. 156 Fed. 1. 12C United States v. Chicago, M. & St. P. Rv. Co. 149 Fed. 486. i2flCfuJf"^C. & S. F. R. Co. V. Fort Grain Co. (Tex. Civ. App.) ; 73 S. W. 845; U-ited States v. Colo- rado & K W. R. Co. 157 Fed. 321 ; United States v. Chicago, M. & St. P. Ry. Co. 149 Fed. 486. i^eMcXeil v. Southern Ry. Co. 202 U. S. 543; 26 Sup. Ct." 722; 50 L. Ed. 1142; In re Greene, 52 Fed. 104; Chicago, ]\T. & St. P. Ry. Co. V. Voelker. 129 Fed. 522; I^'^nited States v. Central of Georgia Ry. Co. 157 Fed. 893; Belt Ry. Co. 48 FEDERAL EMPLOYERS LL^ILITY ACT. place in another state, brings such carrier within the regu- lations of the Federal Government, Avhether the participa- tion consists in a division under a joint rate of transporta- tion, or such carrier merely constitutes a link in the through route for such transportation.^-^ So the carriage of goods from one point in a state to another point in the same point, but through a portion of another state in the route, is inter- state commerce.^^^ To make the carriage of traffic an en- gagement in interstate commerce it is not necessary that the car bearing it s'hall cross a state line, if such traffic is destined to a point beyond the line of such state ; nor when the line of the railroad carrying it extends beyond such border line.^^^ To s^vitch interstate cars is to engage in V. United States, 168 Fed. 542; United States v. Boyer, 85 Fed. 425. i2f United States v. Standard Oil Oo., 155 Fed. 305 ; Parsons v. Chicago & N. W. Ry. Co. 167 U. S. 447; 17 Sup. Ct. 887; 42 L. Ed. 231; Cincinnati, N. O. & T. P. Ry. Co. V. Interstate Com- merce Commission, 162 U. S. 184; 16 Sup. Ct. 700; 40 L. Ed. 935; Cliicago & N. W. Ry. Co. v. Os- born, 52 Fed. -912; Norfolk and W. R. V. Pennsjdvania. 136 U. S. 114; 10 Sup. Ct. 958; 34 L. Ed. 394; reversing 114 Pa. 256; 6 Atl. 45; Belt Line Ry. Co. v. United States, 168 Fed. 542. i-KHanley v, Kansas City So. Rv. Co. 187 U. S. 617; 23* Sup. d 214; 47 L. Ed. 333; aflirming 106 Fed. 353; New Orleans Cotton Excliange v. Cincinnati, N. 0. & T. P. R. Co. 2 Interstate Com. Rep. 289; Sternborger v. Cape Fear & S. V. R. Oo. 29 S. C. 510; 7 S. E. 836; Mires v. St. Louis & S. F. Rv. Oo. 134 Mo. App. 379; 114 S. W. 1052; St. I»uis & S. F. R. Cb. V. State, 113 S. W. 203: DaAds V, Southern Ry. Co. 147 N. C. 68; GO S. E. 722; Shelby Ice & Fuel Oo. v. Southern Ry. Co., 147 K C. 61; 60 S. E. 721; United States v. Erie R. Co. LGS Fed. 352 ; Kansas City So. Ry. Co. V. Railroad Commission, 106 Fed. 359; State v. Chicago, St. P., M. & 0. R. Co. 40 IVIinn. 267; 41 N. W. 1047. But see, Seawell v. Kansas Citv F. & S. & M. R. Co. 119 Mo. 222^ 24 .S. W. 1002; Campbell v. Ohica-go, U. & St. P. Ry. Co. S8 Iowa,"563; 53 X. W. 323; United States V. Iveliigh Valley R. Co. 115 Fed. 373; I^liigh Valley R. Co. v. Commonwealth ( Pa. ) , , — ; IS Atl. 125; Commonwealth v. Lehitrh Vallev R. Co. (Pa.) 17 Atl. 171). i2h Ex parte Koehlcr, 30 Fed. 867; United States v. Colorado & N. W. R. Co. 157 Fed. 321; United States v. Pacific Coast Ry. Oo. 173 Fed. 448; Covington & 0. Bridge Co. v. Kentucky, 151 U. S. 204; 14 Sup. Ct. 1087; 38 L. E'd. 952; reversing 15 Ky. L. Rep. .320; 22 iS. W. 851; Texas & N. 0. R. Co. v. Sabine Transporta- tion O). 121 S. W. 256; Augusta S. R. Co. v. Wrdghtsville & T. R. TO WHAT RAILROADS STATUTE AI'PLIES. 49 interstate commerce.^-' But if goods be shipped into a state and then delivered to the consignee ; and he then ships them to a point within such state, this is not a shipment in inter- state commerce. ^-^ Co. 74 Fed. 522 ; United (States v. Delaware, L. & W. R. Co. 152 Fed. 269; Interstae Commerce Com- mission V. Bell aire, Q. & C. Ry. Co. 77 Fed. 942; Interstate Com- merce Commission v. Seaboard A. L. Ry. Co. 82 Fed. 563; Missouri, R & T. Ry. Co. V. New Era Mill- ing Co. 80 Kan. 141; 101 Pac. 1011; Rhodes v. Iowa, 170 U. ,S. 412; 18 Sup. Ct. 064; 42 L. Ed.—. i2i Johnson v. Southern Pacific R. Co. 196 U. S. 1; 25 Sup. Ct. 158; 49 L. Ed. 363; reversing 117 Fed. 462; 54 C. C. A. 508; Craw- ford V. New York C. & H. R. R. Co. 10 Amer. Neg. Rep. 166; United States V. Pittsburg, C, C. & St. L. Ry. Co. 143 Fed. 360; MobUe, J. & K. C. R. Co. V. Brombcrg, 37 So. 30i5; Union Stock Yards Co. V. United States, 169 Fed. 404; Chicago, M. &, St. P. R. Co. v. Unitetl States, 165 Fed. 423; United States v. Northern Pacific Terminal Co. 144 Fed. 861; Belt Ry. Co. V. United States, 168 Fed. 542; Wabasli R. Co. v. United States, 168 Fed. 1; Rosney v. Erie R. Co. 135 Fed. 311. i-'JCoe V. Erroll, 116 U. S. 517; 6 Sup. Ct. 475; 20 L. Ed. 715; affirming 62 N. H. 303; Interstate Commerce Commission v. Detroit, G. H. & M. R. Co. 167 U. S. 633; 17 Sup. Ct. 986; 42 L. Ed. 306; affirming 74 Fed. 803; 21 C. C. A. 103. CHAPTER IV. TO WHAT EMPLOYEES STATUTE APPLIES. SECTION 27. Only liable to its own em- ployees. What employee may bring bis action upon the statute. Track repairer. Statute includes everybody Ck)ngress could include — Same person in different ca- pacities — Track repairer — Telegraph operator. Car repairer in switching yard. Laying additional track on bridge — Injury by interstate train. Loading railroad iron rails; burden. "While" railroad was "en- gaging in" interstate com- merce. 28 31 32 33. 34 SECTIOX 35. When employee enters on his work or is entitled to the protection of the statute. When an employee enters on interstate work. Injured servant emploj^ed in both interstate and intra- state commerce. Employees covered by statute. Relation between the employ- ment and the aecident. Who must inflict injury to ren- der railway company liable. Interstate employe injured by negligence of interstate em- ployee. The Nebraska statute. Validity of statute allowing a recovery for an injury occasioned by an interstate employee. 36 37 40 41 § 27. Only liable to its own employees. It is clear that a common carrier by railroad is not liable under the statute to any one except its own employees. § 28. What employee may bring his action upon the statute. — It is an interesting question, coucerning what em- ploye may bring his* action upon the statute, or claim a right to recover damages thereupon for his injuries. It is tau- tology to say that he must have been an employe of the 60 TO WHAT EMPLOYEES STATUTE APPLIES. 51 defendant, at the time of the injury and be injured in tlie line of his duty. That is elementary and need not be dis- cussed. In fact, it is here assumed. The statute in part answers the question when it provides that "every common carrier by railroad while engaging in commerce between any of the several states," "shall be liable in damages to •any person suffering injury while he is employed by such carrier in such commerce." This last quoted clause desig- nates the employe who can recover for his injuries; for he must be injured "while he is employed by such carrier in" commerce between the states or between the states and ter- ritories. Of course, if he is injured in a territory or the District of Columbia, or in the Panama Canal Zone, "or other possessions of the United States," while in the employ of a common carrier by railroad, it is immaterial whether he was engaged ' ' in such commerce ' ' or not ; because the pro- visions of the statute with reference to the territories and such district, zone and "other possessions," are broader than those relating strictly to interstate commerce carriers, and necessarily so; for in the latter instance a constitutional question is involved that is not involved in the former in- stance. The word "while" is significant; for by its terms the employe must be engaged in interstate commerce in order to enable him to recover under the statute. If he be an em- ploye of the railroad company and at the time of his injury be not engaged in interstate commerce, he cannot recover under the provisions of the statute. Of course, all trainmen while actually at work in train work would be engaged in interstate commerce; and perhaps telegraph operators en- gaged in telegraphing train orders. But whether engine ■wipers, car repairers in shops, section hands, bridge builders, carpenters engaged in constructing railroad buildings, would or would not be, while so at work, engaged in interstate is a subject of controversy. And it hasljeen said to be a strained construction of the statute to say that yardmen in making 52 FEDERAL EMPLOYERS LIABILITY ACT. up a train to be hauled in interstate commerce would be en- gaged in such 'commerce ; although the trainmen of such train would be, and especially so in taking on or setting off ears at intermediate stations.^ 1 In the debate upon this propo- sition there was some diil'crence of opinion as to the scojie of the statvite and the employees of an interstate commerce railroad who came within its provisions. Sen- ator Beveridge, of Indiana, thought an employee of a railroad company 100 miles away from its line of road felling tree'^ for its use would come witliin its provisions; but Senator Dolliver^ of lowa^, called his attention to the clause of the proposed statute, and asked: "But are they employed in such com- merce, in interstate commerce?" and added that he considered the statute clear as it stands now. 60 Cong. Record, 1. 1 Sess., p. 4542. In discvissing the Act of 1906, which contained a similar provi- sion, Justice White said: "Thus, the liability of a common carrier is declared to be in favor of 'any of its employees.' As the word 'any' is unqualified, it follows that liability to the servant is co-ex- tensive with the business done by the employers whom the statute embraces; that is, it is in favor of any of the employees of all carriers who engage in interstate commerce. This also is the rule as to the one who otherwise would be a fellow servant by whose neg- ligence the injury or death may have been occasioned, since it is provided that the right to recover on the part of any servant will exist, although the injury for which the carrier is to be held resulted from the negligence of any of its officers, agents or em- ployees." Employers' Liability Cases, supra. The following extract is made from the report of counsel for railroad companies held July 13, 14 and 15, 1908, at Atlantic City, upon the question under discus- sion : "A most important and difficult question is presented when we come to inquire when an employee is 'employed in such commerce.' There are engaged by railroad companies various classes of em- ployees. There are those engaged in the operation of trains. There are those engaged in switching service in yards. There are those engaged in round liouses, who re- ceive engines coming off the road and make liglit repairs upon them and send them out. There are those engaged in maintenance of the depots, tracks and bridges. Tliere are the freight handlers, loading and unloading freight. Tliere are clerks in freight offices and in the general offices of the railroad. Does this Act apply to all of these emjiloyees? "On a railroad engaging in in- terstate commerce it would be difficult to say that any one of these eni])l<)yees is not at some time jierforming some service having a direct relation to inter- state commerce. The Supreme Court of the United States has laid down the proposition in more J than one case that a tiling may be within the letter of the statute and not within its meaning, and within its meaning though not TO WHAT EMPLOYEES STATUTE APPLIES. 53 As the employe must be engaged in the interstate com- merce of his employer, from the very nature of the ques- within its letter; that the inten- tion of the law maker is the law; that a thing which is within the intention of the makers of a stat- ute is as much within the statute as if it were within the letter, and a thing which is Avithin the letter of a statute is not witliin the statute unless it be within the intention of the makers. T hese cases are gatliered in Hawaii v. Manchiki, 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. Ed. 1016. We are, then, to ascertain what is the purpose of this Act. "We suppose it can be fairly said that its purpose is to render the transportation of persons and property safe and to protect em- ployees engaged in such transpor- tation; in other words, that this Act is similar in its purposes to the Acts requiring safety appli- ances and fixing the hours of service of telegraph operators and persons employed in transjwrta- tion. Probably this can be broad- ened so as to include within the intention of the Act all persons whose hours of service and wliose protection Congress could legiti- mately consider as necessary to se- curing the safety of passengers and freight moving in interstate com- merce. And we think that in this view a sensible construction of the Act would eliminate those persons whose service so remotely relates to such safety as not to be fairly within the regulating power of Congress. "In another part of this report the question is discussed as to what are the classes of employees who can be fairly selected as hav- ing an employment involving a hazard not considered in ordinary employment. It is there pointed out that various statutes have been passed from time to time abolishing or limiting the rule of fellow servant, some of these stat- utes in terms applying only to those engaged in the operation of a railroad, and others being con- strued as limited in this respect, although the statutes are not in terms so limited. Some illusitra- tions may be drawn from these cases. "Thus the Supremo Court of Iowa held that the statute of that state applied only to those dan- gers which were peculiar to rail- road operation. "In Luce v. R. Co. 67 Iowa, 75, 24 N. W. 600, the plaintiff was employed in a coal house of a railroad company and while hoist- ing coaf for the purpose of coal- ing an engine was struck by a crane by which the coal was hoisted, due to the negligence of a fellow servant. It was held that the statute did not apply. "In Foley v. R. R. Co. 64 Iowa, 644, 21 N. W. 124, a recovery was denied to a car repairer for in- juries he received while repairing a car on a side track, by reason of the alleged negligence of a co- employee in failing to block the wheels of the car. "In Stroble v. R. R. Co. 71 Iowa, 555, 31 N". W. 63, a recovery was denied to an employee of a railroad company who was injured by the giving way of certain steps leading up to a platform for load- ing coal. "In Malone v. R. Co. 65 Iowa, 417, it was held that an employee 54 FEDERAL EMPLOYERS LIABILITY ACT. tion, his employer at the moment of the injury must be engaged in interstate commerce, not generally but in that of a railroad company employed in wiping olT engines, opening and closing the doors of the engine liouse, removing snow from the turntable and tracks and turning the turntable when engines were being run between the main track and the engine house, was not en- gaged in the operation of a rail- road within tlie statute. "In Reddington v. R. R. Co. lOS Towa, 96, 78 N. W. 800, it was held that the railroad company was not liable to a brakeman for injuries received while he was as- sisting in coaling an engine, through the negligence of a co- employee in operating the hoisting crane So as to knock him from the platform, such movement not being necessary in order to permit the train to start. '"The Supreme Court of Minne- sota has construed its Employers' Liability Act as applying only to those employees of railroads en- gaged in the operation of rail- roads. "In Johnson v. R. Co. 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419, a crew of men, of whom the plaintiff" was one, were engaged in repairing a bridge on defendant's railroad. In performing the "-ork it was necessary to leave the draw partly open. Through the negli- gence of one of the crew the draw was left unfastened. It was blown part shut by the wind and injured plaintiff while he was at work l>etween the stationary part of the bridge and the draw. It was held that the statute did not apply. "In Minnesota Iron Co. v. Kline, 199 U. S. 593, 26 Sup. Ct. Rep. 159, 50 L. Ed. 322, affirming 93 Minn. 63, 100 X. W. Eep. 681, the judgment of the Supreme Court of jMinnesota reported in 93 Minn. 63, was affirmed. It apeared in that case that the court had al- lowed a recovery for the loss of an arm by the plaintiff, whilf^ re- ])airing an engine of the defendant, through the negligence of a fel- low servant. "In Jemniinj v. R. R. Co. 96 Minn. 302, 104 N. W. 1079, the plaintiff was injured while em- ployed by the railroad company as a pitman. He was one of a crew of nine men operating a steam shovel in a gravel pit, and was injured through the negli- gence of a fellow servant. It was held that the statute did not ap- ply for the reason that plaintiff and his fellow servants by whose negligence he was injured, were not engaged in operating a rail- road at the time of the accident. "The Kansas statute is given in Missouri Ry. v. Mackey, 127 U. S. 206; 8 Sup. Ct. Rep. 1161; 32 L. Ed. 107; affirming 33 Kan. 298; 6 Pac. Rep. 291. It was there held, affirming the judgment of the Supreme Court of Kansas, that a fireman on an engine em- ployed in transferring cars from one i)oint to another in a yard when it was run into by another engine owing to the negligence of the engineer oi the latter, could recover. "But in ]\Iissouri, K. & T. R. Co. V. IVIedaris, 60 Kan. 151, 55 Pac. 875, it was held that Me- daris, wlio was employed in setting a curbing around an office build- ing and depot of the railroad com- TO WHAT EMPLOYEES STATUTE APPLIES. 55 specific instance, and in that identical commerce he must be injured if he recovers under the statute. pany at Parsons, Kansas, could not recover. "In Chicago, etc., R. R. Co. v. Pontius, 154 U. S. 209; 15 Sup. Ct. Rep. 585, 39 L. Ed. 675, affirming o2 Kan. 264, 34 Pac. Rep. 739, a judgment was sus- tained n favor of Pontius, who was a bridge builder, the Supreme Court saying: ' He was engaged at the time the accident occurred not in building a bridge but in loading timbers on a car for transportation over the line of de- fendant's road.' "In Chicago. R. I. & p. R. R. v. Stahley, 62 F. R. 363, Mr. Jus- tice Brewer, in an opinion written by him for the Circuit Court of Appeals for the English Circuit, held that the statute applied to a workman in a round house who was injured while getting a loco- motive ready for immediate use, and that lie could recover for his injury notwithstanding it was oc- casioned by the negligence of a fellow servant. Mr. Justice Brewer said: " 'He was not engaged in repair- ing an old engine or constructing a new one, but in putting that engine, which had recently arrived, in condition for immediate use. He was * * * not engaged in any outside work remotely related to the business of the company; he was not cutting ties on some dis- tant tract to be used by the com- pany in preparing its roadbed, nor in mining coal for consump- tion by the engines, nor even in the machine shops of the company, constructing or repairing its roll- ing stock; but the work which he was doing was work directly re- lated to the movement of trains — as much so as that of repairing the track.' "In Indianapolis U. Ry. Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, the court held that the stat- ute applied to a telegraph oper- ator stationed at a track junction and whose duties required him to cross the railroad tracks, and who, while so doing, was struck by a train running twenty miles an hour but which gave no warning of its approach. "In Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033, the plaintiff was a pas- senger train engineer and was standing between two railroad tracks where he had gone to take charge of his engine, when he was knocked down and injured by an- other train of the railroad com- pany, in- the city of Logansport, Indiana. It was held that the statute applied and that he could recover. "In Southern Ind. R. R. Co. v. Harrell, 161 Ind. 262, 68 N. E. 262, the railway company was en- gaged in the construction of a railroad bridge over White River. A heavy stone was being lifted by a derrick. One of the em- ployees was injured by the negli- gent liandling of this apparatus. It was held that he could not recover under the statute. "In Indianapolis & G. R. Co. v. Foreman, 162 Ind. 85, 69 N. E. 669, the plaintiff, an employee of the railroad company engaged in the construction of a track, was injured wliile Ixiing transported to his home in the work car of the company, by reason of the negli- 56 FEDERAL EMPLOYERS' LIABILITY ACT. § 29. Track repairer. — A track repairer engaged in re- pairing a track over which both interstate and intrastate trains move is embraced within the provisions of this statute. "The track of a railroad company engaged both in interstate and intrastate commerce is, while essential to the latter, in- gence of the employees of another train. It was lield that lie could not recover. "In Pittsburg R. E. Co. v. Ross, 1G9 Ind. 3, 80 N. E. 845, a switch- man injured by the movements of cars in a switch yard was held entitled to recover. "In Indianapolis T. & T. Co. v. Kinney, by etc., 171 Ind. 619, 85 N. E. 954, the Supreme Court of Indiana held that a member of a section gang who was injured by the negligence of a fellow laborer while miloading steel rails from a car could! not recover. "It is^ however, to be stated that the courts in certain other states have been much nrore lib- eral in the construction of em- ployers' liability acts than some of the northwestern states whose opinions we have cited. "Thus, in Callahan v. St. L. :\Ier. B. Co. 170 Mo. 473, 60 L. R. A. 249, 71 S. W. 208, affirmed in 194 U. S. 628, it was held that where certain workmen were on a railroad trestle which crossed a street in St. Louis and were tlirowing timbers down into the street, an employee of the com- pany whose duty it was to warn pedestrians was entitled to re- cover for an injury received til rough the negligence of the workmen on the trestle, it being lield that he was engaged in the operation of the road. "In Texas & P. R. R. Co. v. Carlin, 111 F. R. 777, 189 U. S. 354, 23 Suj). Ct. Rep. 585, 47 L. Ed. 849, it was held that an em- ployee could recover who was re- pairing a bridge while trains were using it and was injured by being struck with a spike maul which had negligently been left on the bridge track by the bridge foreman. "In Georgia, etc., R. Co. v. :^.liller, 90 Ga. 571, a brakeman was injured while under a disabled engine out on the road. It was held tliat he could recover notwith- standing his injury was caused by the negligence of a fellow servant. "In Hancock v. Norfolk, etc., R. R. Co. 124 N. C. 222, 32 S. E. 679, it was held that a section hand who was injured by reason of the handcar on which he was riding running into an open switch, neg- ligently so left by a train brake- man, could recover. "See also Chesapeake & O. Ry. Co. V. HofTman, G3 S. E. 432, con- struing Section 163, Va. Const., 1902. "That a car may be in use in interstate commerce although at the time empty, or about to start on a journey, or designed for com- pany use and not for traffic, would seem to be held in such ca«'s as Voelker v. Railway Co. 116 F. R. 867, affirmed 129 F. R. 522. See U. S. V. I. C. R. R. Co. 156 F. R. 183; Johnson v. S. P. Co. 196 U. S. 1 ; Schlemmers v. V. R. Co. 205 U. S. 1; 27 Sup. Ct. Rep. 407; 51 L. Ed. 681; reversing 207 Pa. St. 198; 5C Atl. Rep, 417; U. S. V. C. M. & St. P. R. Co., 149 F. R. 486, 490. TO WHAT EMPLOYEES STATUTE APPLIES. 57 dispensable to the former. It is equally important that it be kept in repair. When the traffic itself is not in fact interstate, although upon a railroad engaged in commerce between the states, such as trains devoted entirely to local "But, according to Lurton, J., in St. L. & S. F. Co. v. Delk, 158 F. R. 939, a car set on a dead track for repair is not within the Safety Appliance Act (used in in- terstate commerce), 'any more than a car in a shop awaiting re- pairs.' . "If a train is engaged in inter- state commerce, any employee em- ployed on such train is employed in such commerce, and hence, if injured, is within the Act. This would embrace all trainmen. "Again, if switching interstate cars in a yard or delivering inter- state cars by a terminal company is engaging in interstate com- merce, all switchmen so employed are within the Act. "In this connection attention will be called to what is said by the Delaware Court in the case of Winkler v. Philadelphia Railway, 4 Penn. (Del.) 80; 53 Atl. 90. This was an action for damages. Winkler is described as head brakeman of a shifting erew which was using shifting engine Number 1242 and its tender in moving and delivering interstate commerce cars at the siding on the couth side of Wilmington, the railroad, defendant, then and there being a common carrier of pas- sengers and freight. In charging the jury the court said: " 'If the tender and car were then in use in moving local traf- fic only, from point to point with- in the limits of this state, they could not be engaged in interstate commerce. If, however, the car being moved had come from a point out of the state with freight to be here delivered it would be moving interstate commerce. This would be so even though the car to which the tender was being coupled was not tlie car used in interstate traffic, if the removal of such a car was a necessary step in getting out and moving said interstate car.' "In this connection attention may also be called to the case of Kansas City Ry. v. Flippo, 138 Ala. 487; S. C. 35 Sou. 457. "If Justice Brewer is right in his opinion in Chicago R. L. & P. R. R. V. Stahley, 62 F. R. 363, it would seem that all persons employed in round houses, and all persons employed in maintaining the track, and, it would follow, bridges, would be within the act. On the other hand, persons em- ployed in the machine shops of the company, constructing or re- pairing its rolling stock, would not be within the act. And in this connection, as to car re- pairers, attention is called to what was said by Judge Lurton, as given above, in St. Louis & S. F. Co. V. Delk, 158 F. R. 939. "As for car builders and repair- ers, clerks in freight offices and in general offices, we believe that they will not be held to be within the reason of the act, and, there- fore, not entitled to its benefits. We believe that the same principle will be applied to freight handlers. We believe, however, tliat the Act will be lield to apply to all per- sons engaged in tlie operation and physical maintenance of the road." 58 FEDERAL EMPLOYERS LIABILITY ACT. business and wholly within the borders of a state, a different • case is presented. There it is possible to identify what is and what is not interstate ; but when, as in this case, a road is admittedly engaged in both, it becomes impossible to say that particular work done results directly for the benefit of one more than the other. iNlanifestly it is for the accommo- dation of both, to hold, then, that a workman engaged in repairs upon the track of such a carrier is not furthering interstate commerce or w^ould be to deny the power to control and is a desirable instrument for commercial inter- course between the states — to deny the power of Congress over interstate commerce — but that the power extends to the control of their instrumentalities through which such commerce is carried on is not an open question." ^ "No doubt there may be situations, indeed we have the highest authority for it ^ when instrumentalities that may be used for interstate or intrastate traffic, or both, but which at the time are not being used for either, as the engines or cars are undergoing repair, or in cases of clerical work or when the acts or things done are not physically or otherwise directly connected with the moving of traffic, where there could be no ground for claiming liability under the Act of Congress, even though the carrier, in fact be engaged in interstate as well as local traffic. But where the employment necessarily and directly contributes to the more extended use and -without which interstate traffic could not be carried on at all, no reason appears for denying the power over the one, although it may indirectly contribute to the other. The particular question is an apt illustration of the intricacies to which our dual system of government often leads; but the intricacy is but an incident, and it can neither defeat nor impair the power of Congress over interstate commerce. 2 Citinn; and quoUnj^ from Inter- 826; 29 L. Ed. 158; Wcldon v. state Oommorce Oommission. v, Wisconsin, J)l U. S. 275; 23 L. Ed. Illinois Central R. Co. 215 U. S. 347. 452; .30 Sup. Ct. 155; 54 L. Ed. a Citing Employers' Liability 280; Gloucester Ferry Co. v. Penn- Casey. 207 U. S. 495; 28 .Sup. Ct sylvania, 114 U. S. I'JG; 5 Sup. Ct. 141; 52 L. Ed. 297. TO WUAT EMPLOYEES STATUTE APPLIES. 59 Since the track, in the nature of things, must be maintained for commerce between the states, the work bestowed upon it inures to the benefit of such commerce. It is therefore subject to the Federal control, even though it may con- tribute to carriage wholly within the state. Being insepar- able, yet interstate commerce inherently abiding in the thing to be regulated, as to the track, the state jurisdiction must give w'ay, or at least it can not defeat the superior power of Congress over the subject-matter, whenever a carrier is using the track for the double purpose. ' ' * § 30. Statute includes everybody Congress could include ; same persons in different capacities; track repairer; tele- graph operator. — It has been held that a track repairer on an interstate railroad was within the provisions of this statute. So much of the opinion of the court as relates to the subject is as follows: "The present act * * * I think should therefore be construed ^ as intending to include wnthin the term 'person employed in such commerce' all those persons who could be so included within the consti- tutal power of Congress, that is to say, the act meant to include everybody Congress could include. Under this con- struction the inquiry becomes whether Congress coiild con- stitutionally have passed a statute regulating the relation between a carrier-master and a servant who was engaged in the repair of a track used both for interstate and intra- state commerce. Preliminarily the distinction should be noted that the act will not necessarily apply to the same person in all details of his employment. One man might have duties including both interstate and intrastate com- 4 Zikos V. Oregon R. & X. Co. switch. Colasurdo v. Central Rail- 179 Fed. 893, citing In re Debs, road of New Jersey, 180 Fed. 832. 158 Fed. 564; 15 Sup. Ct. 500; 5 This said in view of the fact 39 L. Ed. 1092, and Ex parte that the statute was enacted to Siebold, 100 U. S. 371; 25 L. Ed. escape the invalidity of the Act of 7il7_ 1906 as pointed out in the Em- The same result was reached in ployers' Liability Cases, 207 U. S. the case of an employee injured 463; 28 Sup. Ct. 141; 52 L. Ed. by a local train while repairing a 297. 60 FEDERAL EMPLOYERS' LIABILITY ACT. merce, and he would he su'bject to the act Avhile engaged in one and not the other. This being so, the question is ■whether his repairing of a switch is such emplojinent, when the switch is used indifferently in both kinds of commerce. Suppose the track had crossed a corner of a state, and there was only one station within that state so that all trains crossing over that track must necessarily be engaged in interstate commerce. Would not a track worker engaged in the repair of such a track be engaged in interstate commerce 1 I do not think that he would be any the less so engaged than the engineer on the locomotive or the train dispatcher who kept the trains at proper intervals for safety. Of course, it is not necessary that the man must personally cross a state line. If the repair of such a track be interstate commerce, does it cease to be such because there are two stations within the state and some of the trains start at one and stop at the other ? I cannot think that this is true, although counsel have referred me to no case upon the subject and I have found none. The track is none the less used for inter- state 'Commerce, because it is also used for intrastate commerce, and the person who repairs it is, I think, employed in each kind of commerce at the same time. Despite the earlier ruling in Gibbons v. Ogdcn,^ it has in recent times been stated several times by the Supreme Court that state statutes may indirectly regulate interstate commerce, even though Congress may at any time itself under its proper constitutional powers, enact a provision of directly opposite tenor.'^ If, as was held in those cases, a state has the power to regulate such commerce until Con- gress intervenes, because it is as well within the state's proper powers, must not the corollary be true as well, that Congress may intervene, even when the effect of that inter- vention be incidentally the regulation of intrastate commerce as well ? Could not Congress, for example, provide that all 6 9 Wheat. 1; 6 L. Ed. 2.3. v. Colorado, 187 U. ,S. 137; 23 7 Citing Sherlock v. Ailing, 93 Sup. Ct. 92; 47 L. Ed. 108. U. S. 99; 23 L. Ed. 819; Eeid TO WHAT EMPLOYEES STATUTE APPLIES. 61 tracks used in interstate commerce must be of a standard width and weight? Would that not affect all tracks used in such commerce, although they likewise were used for intrastate commerce ? Of course, anyone could use any other tracks he chose for intrastate commerce ; but it can surely not be a ground to limit Congress's proper powers that the track has a joint use. If so, the repair of such tracks must be a part of interstate commerce, and under the Employers' Liability Cases,^ the relations of master and servant arising between the railroad and its employees engaged in repairing the track are similarly within the power of Congress. I am therefore of opinion that the plaintiff was at the time engaged in interstate commerce and entitled to the rights secured by this act. That being so, it is a matter of no icon- sequence whether the train that struck him was engaged in that commerce or not. It is true that the act is applicable to carriers only "while engaged" in interstate commerce, but that includes their activity when they are engaging in such commerce by their own employees. In short, if the employee was engaged in such commerce, so was the road, for the road was the master, and the servant's act is its act. The statute does not say that the injury must arise from an act itself done in interstate commerce, nor can I see any reason for such an implied construction. ' ' ^ § 31. Car repairer in switching yard. — In a ease brought to recover damages it was shown that the plaintiff had been sent "to one of the different railroad's yards and assigned to the work of coupling up air hose, looking over brakes to see if they Avere all right, and to shop-mark any brake that was found broken." On the date of the injury an employee of the railroad, whose work was to couple up the air hose and make such light repairs as could be done upon the switching track, -was unable to perform his duty that day, and the plaintiff was assigned and directed to do his Avork. 8 207 U. S. 463 ; 28 Sup. Ct. « Colasurdo v. Central R. R. of 141; 52 L. Ed. 297. K. J. 180 Fed. 832. 62 FEDERAL EMPLOYERS' LLLBILITY ACT. The tracks upon which this work was done were not repair tracks, but were switching tracks ; and the car which caused his injury was on a track upon which was run cars to be delivered to another railroad. In coupling up the air hose of the cars on this track he found one car with a defective coupler which he attempted to remedy so as to couple the cars and the air hose, but was injured while between it and the next car by some cars "kicked" on to the track which suddenly caused the defective ear to move and injure him. This car was not equipped as the Safety Appliance Act required. It was held that the plaintiff was entitled to recover because this car was not equipped as the Safety Appliance Act required whereby the plaintiff was injured ; and also that the Employers' Liability Act applied to him. "In moving the ear in question," it was said the plaintiff "was engaged in interstate commerce," and he was em- ployed by the company ' ' in said commerce. " " It is arg-ued, ' ' said the court, "that the Employers' Liability Act can have no application to the ease, as plaintiff was not an employee engaged in interstate commerce. A part of his employment was to see to the coupling of the car and the air hose upon the ears which were placed upon the transfer tracks. Some of the cars, among them the one in question, were engaged in interstate commerce. It is difficult to see why he was not an employee engaged in the movement of interstate com- merce to as full an extent as a switchman engaged in the making up of trains in the railroad yards, or in the case of Chicago Junction Railroad Company v. Eing.^'^ From a consideration of the whole case, we think the defendant or railroad company was engaged in interstate commerce ; that the car in question had upon it a coupler which was defec- tive and did not comply with the Act of Congress; that at the time plaintiff was injured the movement of the car was a movement by defendant in interstate commerce; that plain- tiff was injured while a servant of defendant and in the performance of his dut}', aiding in the movement of inter- im 1G9 Fed. 372; 94 C. C. A. 652, affirmed 32 Sup. Ct. 79. TO WHAT EMPLOYEES STATUTE APPLIES. 63 state commerce; that the movement of the car with the defective coupler was the proximate cause of plaintiff's in- juries ; that plaintiff did not assume the risk of injury inci- dent to the employment. " ^^ § 32. Laying additional track on bridge ; injury by inter- state train. — A railway company was engaged in both inter- state and intrastate traffic at the time its employee was injured. At the time of the injury the company was building an additional track on the line, part of which was laid on a bridge. The employee was engaged in the bridge construc- tion, and he was injured while ^carrying material from one part of the work to another by a local train running between two points within the same state. This train was engaged wholly in intrastate business. It was held that he could not recover under this statute, not coming wdthin its provisions. The court declined to follow the Zikos case ^- and the Colasurdo case.^^ The court considered that the plaintiff was ''injured by an act of the defendant done in the performance of purely intrastate business, ' ' and for that reason entered judgment in favor of the defendant." § 33. Loading railroad iron rails ; burden. — Whether or not an employee injured while loading rails for an interstate railroad has not been decided. A case some- what of this eharacter was decided in the Supreme Court of the State of Washington, 'but the question whether or not such an employee came within the provisions 11 Johnson, v. Great Northern E,y. Union Stock Yards of Chicago C5o. 178 Fed. 643. "Whether plain- where the injury was inliicted upon tiff was guilty of any negligence him while he was between two cars Which contributed to the injury trying to replace the broken part was, if applicable, a question for of a coupler, the jury." 12 zikos v. Oregon R. & N. Co. In the case of Chicago Junction 179 Fed. &93. Ey. Co. V. King, 169 Fed. 372, is Oolasurdo v. Central R. R. of 94 C. C. A. 652, affirmed 32 Sup. N. J. 180 Fed. 832. Ct. 79, the person injured was i* Pedersen v. Delaware, L. & VV. a switchman employed in the E. Co. 184 Fed. 737. 64 FEDERAL EMPLOYERS' LIABILITY ACT. of this statute was not decided ; although, a recovery having been had npon this statute, the case was reversed because it was "not shown whether the rails were old or new, where they came from, where they were to be taken, or where the car was to go when loaded. The respondent's theory seems to be that," continued the court, "because the appellant was authorized to, and did at times, engage in interstate commerce, and because the respondent was employed in loading a flat car with rails which had been used or were to be used in the repair of its roadbed in the State of Montana, he 'was necessarily engaged in interstate commerce A^-ithin the meaning of the act. We can not assume that every employee of appellant, by reason of his employment, is so engaged. Appellant may have thousands of employees whose duties do not partake of that 'character. If the act in question is constitutional, it is so because it applies only to (Servants engaged in interstate commerce. If it is broad enough to include this case in its provisions, it is, in our opinion, open to the same objections which rendered the earlier act unconstitutional. If respondent is to avail him- self of the benefits, the burden devolves upon him to show that the duties which he was performing while an employee of the appellant were of a character that directly pertained to and were a part of interstate commerce. No such showing was made, and appellant's motion for a directed verdict should have been sustained." ^^ §34. "Wliile" railroad was "engaging in" interstate commerce. — Divergent views prevail over the phrase "while engaging" in interstate commerce as applied to the railroad company. Thus an employee was injured while repairing ■a switch in the yards of an interstate railroad by a local train running between two points within the state, and it was held that the company was liable under the statute. 15 Tsmura v. Great Northern Ry. See Van Brimmer v. Texas & P. Co. 58 Wasdi. 318; 108 Pac. 774. Ry. Co. 190 Fed. 394. TO WHAT EMPLOYEES STATUTE APPLIES. 65 The repair of tlie switch was held to be interstate business, because the switch was used indifferently in both kinds of commerce. The court held that it was no matter of concern whether or not the train that struck him was at the time engaged in interstate commerce, giving as a reason: "It is true that the act is applicable to carriers only 'while en- gaged' in interstate commerce, but that includes their activity when they are engaging in such commerce by their own employees. In short, if the employee was engaged in such commerce, so was the road, for the road was the master and the servant's act its act. The statute does not say that the injury must arise from an act itself done in interstate commerce, nor can I see any reason for such an implied construction."^" But the soundness of this position has been denied. In one ease after making the above quotation, the court said: "With much respect I am unable to agree with this construction. As it seems to me, the statute does not say that the injury shall arise from the act itself done in interstate commerce ; for in the light of legislative history I am unable to find a broader meaning in the words 'while engaging in commerce between any of the several states,' " etc. A carrier is not engaging in commerce between the states while it is doing intrastate business, and I think that Congress is not attempting in the Act of 1908 to regulate intrastate business by charging such business with im- portant liabilities. For the purpose of the commerce clause, the two kinds of business are as distinct as if they were undertaken by different corporations. One corporation, the intrastate earrier, would not be subject to Federal control, and Congress would have no power to affix legal consequence to its acts. This v/ould be clear enough, I think, if the two kinds of business were actually separated, and were actually performed by two eorporations respectively. The fact that only one corporation actually performed them both makes it more difficult to separate the acts and to assign the proper consequences to each, but in my opinion cannot change the 16 Colasurdo v. Central R. R. of New Jersey, 180 Fed. 832. 66 FEDERAL EMPLOYERS' LIABILITY ACT. rules that must be applied. It is easy to depict certain anomalies and hardships that may arise. Both are prob- ably inevitable under the dual control exercised by the state and Federal governments over the complicated busi- ness of carriers; but this dual contract is a fundamental fact in the division of legislative power between these two governments, and the distinction must be observed. In the last analysis it appears to be a question of power. Can Congress regulate the intrastate business of a common carrier? If not, I do not see how it can declare that a purely intrastate act shall subject the carrier to liability solely because such act has injured a person who at the time was engaged in commerce between the states. Clearly Congress could not so declare if the injured person had suffered while he was engaged in business intrastate in character, and I cannot escape the conclusion that the carrier's liability must be determined by considering what kind of an act did the harm, and not exclusively by the occupation of the injured person. It is the doing, or the willing to do, some act. that gives rise to a cause of action, and it Avould cer- tainly be an exceptional exercise of Federal power to attempt to give a right of action for a particular wrong unless Congress was also able to forbid the error itself. Therefore, and in this region of controversy I express my opinion with great deference for Avhat may well be the better opinion of others — since Congress can neither di- rectly forbid nor regulate the purely intrastate acts of a common carrier, I believe that it cannot reach the same result indirectly by deciding tbat iinportant and burden- some consequences shall follow such acts."^^ 17 Pederson v. Dolawaro, L. & W. ovor a railroad that is "a highway K Co. 184 Fed. 737. of interstate commerce." Since this case was decided the See Section 121a. See, also, Supreme Court has decided that Southern Ry. Co. v. United States the Safety Appliance Act applies (U. S.), 32 'Sup. Ct. 2; 222 U. S. to the equipment of interstate cars, — : 5C) L. Ed. — ■. How far this in a train by themselves, moved will have a bearing on the reason- TO WHAT EMPLOYEES STATUTE APPLIES. 67 § 35. When an employee enters on his work or is entitled to the protection of the statute. — A case arose in Montana that is instructive on the question when a workman is en- gaged in the service of a railwaj^ compam^ and consequently when he was entitled to the protection of the Federal statute extending to interstate employees. One Moyse was a con- ductor on the railroad of the defendant. He brought his train to a freight yard, and having registered his arrival, in the evening of the day of his arrival, he was noti- fied that he would not be required to go on duty again until the morning of the second day thereafter. He, with the brakeman of his train, spent the day in the city where the yard was situated, returning at night to the freight yard to sleep in the caboose, as was the fixed custom of the employees of the company. The caboose was placed on a spur track ending at an excavation, with no protection to prevent its running into it. There was a slope towards the excavation, but with the brakes set, barring accidents, it v^as considered reasonably safe to occupy the caboose for sleeping purposes. After the men had returned, the yard crew ran other cars upon the spur on wiiich the caboose stood and left them standing, ajyparently held securely by their own brakes. During their brief absence these cars and the caboose disappeared, having been released in some manner and running together into the excavation. It was contended that the conductor who was asleep in the caboose, when it was thrust into this excavation, and who was in- jured, could not he regarded as, at that time, in the service of the defendant railroad, but the court held that he was, saying : ing of the case quoted above it intrastate commerce, is hims'clf en- is difficult to say. gaged in interstate commerce, and See, also, Van Brimmer v. Texas entitled to sue, when injured, under & P. Ry. Co. 190 Fed. 394-. this statute. Horton v. Seaboard A railroad engineer injured Air Line R. Co. (N. C.) 72 S. E. while hauling a train containing 9158. oars engaged in both interstate and 68 FEDERAL EMPLOYERS' LIABILITY ACT. "The complaint is framed upon the theory that the defendant company is liable to the plaintiff, as one of its employees, for injuries received while engaged in the dis- charge of his duties, through the negligence of other em- ployees, and that the other defendants are liable because they were personally guilty of the acts of negligence which caused the injury. It declares upon the statute which abolishes the fellow-servant rule, (Rev. Codes, sec. 5251.) The acts charged as negligence are the handling of the cars by the yard crew in making up the train in such manna? as to permit them to escape and collide with the 'caboose, driving it into the excavation, and the omission by de- fendants to provide some device, at the brink of the excava- tion, to prevent the caboose from being precipitated therein, if from any cause it escaped. The first contention made by the counsel is that the evidence is insufficient to justify the verdict, for that it appears that at the time the plaintiff was injured he was not engaged actively in the discharge of duties for which he was employed by the company, but was a mere licensee upon its property, to whom it and its employees owed no duty other than to refrain from doing him a willful or Avanton injury; and hence that no liability can be predicated upon the statute. In support of this con- tention counsel argue that, while one is in the employ of another under a contract, he is, in a popular sense, an em- ployee during the entire period covered by the contract; yet the rights and duties incident to the relation of master and servant, in a legal sense, do not subsist, except during the time which, under his contract, he must actively devote to the duties of his employment. To make the statement in another way : Unless the servant is at a particular time under the control of the master, giving his time and atten- tion to the particular duties he is emploj^ed to do, he is pro hac vice a stranger to whom the master, as such, owes no ■duty whatever, except such as he must observe toward any other stranger under the social compact. While the statute has to do exclusively with those persons who sustain toward TO WHAT EMPLOYEES STATUTE AI'PLIES. 69 each other the relation of master and servant, it does not undertake to define who those persons are, but merely imposes certain rights and liabilities upon them, leaving it to the courts to detemiine when persons have assumed the relation. The facts and circumstances which appear from the statement of the evidence before us furnish support for the inference that, during the entire time when the plaintiff was away from his home terminal, he was, except when notified that his services were not wanted, subject to be called on duty. He was required to be within call, and, as he understood the rules, was subject to discipline if he was not. It is also a fair inference that though he was not under his contract required to occupy the caboose at night, he was nevertheless expected to do so, and not only this, but that he had a right to do so, because it was under all the cir- cumstances a substantial privilege accorded to him under the contract, which the company was not at liberty to with- draw at will. If these inferen-jes are permissible, and we think they are, then the conclusion seems inevitable that he was in the caboose in the course of Lis emj^loyment, and that the members of the yard crew vrere his fellovz-servants, for whose negligence the ^company is lia'ble under the statute." "The conclusion we have reached, that the plaintiff was in the caboose for the purpose of being within call by the defendant company to go on duty, and was therefore in the discharge of his duties, involves the conclusion, also, that he was not there as a mere licensee, and that the rule of liability declared by the statute applies to the case made by the evidence. It is not at all conclusive that the pay of the plaintiff ceased when he registered on his arrival at Butte [the city where the accident happened] . In the light of the evidence, under the contract of employment it was within the contemplation of both parties that he should hold him- self subject to the order of the company after his pay had ceased; and it seems clear that a contract including a stipu- lation of this kind, express or implied, is not open to any legal objection. Under the circumstances disclosed, the 70 FEDERAL EMPLOYERS' LIABILITY ACT. obligation was upon the company to use ordinary care to provide a reasonably safe place for the use of plaintiff, and to maintain it in that condition." ^^ § 36. When employee enters en interstate work. — It is very difficult to lay down any rule that will be definite enough to afford any aid in determining just when an employee begins work that is covered by the statute. This may or may not involve the question just when the relation of master and servant begins; but usually a determination of that point of time will be of assistance in this connec- tion. Take the case of an engineer whose run is from one state to another, and who is injured by a fellow servant l^efore he has mounted his engine or even reached it. Can the circumstances be such that he comes within the provi- sions of this statute? One 'COurt has in a measure answered this question. "When Tucker was killed," said the court, "he was upon the premises of the defendant in response to its call, to assume the duties he had been engaged by the defendant to assume, and for their mutual interest and advantage. Can it be that under such circumstances the relation which the decedent sustained to the defendant was that of a mere stranger? Is it possible that the Act under consideration warrants a distinction so fine as to permit a master to escape liability for negligence resulting in the inquiry of one hired to jjerform service, because the injury occurs before the service is actually undertaken, notwith- standing that at the time of the injury the servant is prop- erly and necessarily upon the premises of the master for the sole purpose of his employment? We think not. Such a rule, in our view, would be as technical and artificial as it would be unjust. We think the better rule, the one founded in reason and supported by authority, is that the relation of master and servant, in so far as the obligation of the master to protect his servant is concerned, comraences when laMoyse v. Xortliein racific Ry. Co. 41 Mont. 272; 108 Tac. 1062. TO WHxVT EMPLOYEES STATUTE APPLIES. 71 the servant, in pursuamce of hi-s contract with the master, is rightfully and necessarily upon the premises of the master. The servant in such situation is not a mere trespasser nor a mere licensee. He is there because of his employment, and we see no reason why the master does not then owe him as much protection as it does the moment he enters upon the actual performance of his task. * * * in Packet Company V. McCue,^^ a bystander was hired on a wharf to assist in loading a boat which was soon to sail. This man had been occasionally employed in such Avork. His serviices occupied alDout two and one-half hours, when he was directed to go to 'the olYiee,' which was on the boat, and get his pay. This he did and then attempted to go ashore. "While on the gang- plank the plank was recklessly pulled from under his feet, and he was thrown against the dock, receiving injuries from which he died. Owing to the somewhat peculiar nature of the case it w^as held that it was for the jury to say, although the facts were undisputed, whether the relationship of master and servant existed until the man got completely ashore. The ^concluding sentence of the opinion of Mr. Justice Davis was as follows: 'The defense at best was a narrow one and, in our view, more technical than just. ' In Ewald V. Chicago & Northwestern Railroad Company,-'^ it was held that an engine wiper employed in the defendant's roundhouse, while going to his work along a pathway cross- ing the defendant's yard and tracks was an employee of the defendant, hence could not recover for injury resulting from the negligence of a fellow-servant on the freight train causing the injury. The court in its opinion said: 'The peculiar facts of this case which make him such, appear to involve precisely the same principles as that class of cases where the plaintiff was being carried on his way from and to his place of labor by the railroad company, by consent, custom, or contract, and was injured by the negligence of other employees of the company. This carriage of the plain- tiff was the means, facility, and advantage to which he was 19 17 Wall. 508; 21 L. Ed. 705. 20 70 Wis. 420; 3G N. W. 12, 591. 72 FEDERAL EMPLOYERS' LLVBILITY ACT. entitled by reason of his being an employee or servant, which entered into and became a part of his contract of employment or were incidental and necessary to it. * * * Again, it may be said that the plaintiff was still an employee, because he was attempting to use the pathway between the ear as the only customary and convenient means of access to and exit from the roundhouse Avhich the company had provided, and was under obligation to keep open and safe for him and his fellow-workmen when he was injured.' In Boldt V. Xeiv York Central Railroad Company,-'^ plaintiff was injured while Avalking on a new track from his house to his work. The court said: 'But he was in defendant's employment and doing that which was essential to enable him to discharge his particular duty, viz., going to the spot where it was to be performed, and he was, moreover, going on the track where, except as the servant of the company, he had no right to be. He was there as the employee of the company, and because he was suoh employee.' But it is urged that Fletcher v. Baltimore & Potomac Railroad Com- pany,^^ sustains the view of the defendant on this question. "We do not so read the case. There the plaintiff at the time of the aosident had ended his work for the day, and had left the workshop and grounds of the defendant, and was moving along a public highway in the city with the same rights as any other citizen would have, when he was struck by the rebounding of a sti-ck of timber thrown from a train of the defendant by one of its employees, a practice per- mitted by the company, and injured. It was held that 'the liability of the defendant to the plaintiff for the act in question is not to be gauged by tlie law applicable to fellow- servants, where the negligence of one fellow-servant 'by which another is injured imposes no liability upon the common employees.' IManifestly tliat case and this are ma- terially different. There the plaintiff was not on the prem- ises of the defendant, but upon a public highway where his 21 18 N. Y. 432. 3.5: 42 L. Ed. 411; reversing G 22 168 U. S. 135; 18 Sup. Ct. App. D. C. 3S5. TO WHAT EMPLOYEES STATUTE APPLIES. 73 relations to the defendant were precisely those of the general public to it. Its relation to him, therefore, in such a situa- tion was precisely what it would have been to any other pedestrian. Here, however, the plaintiff was upon the prem- ises of the defendant, upon its invitation, in the line of his emplojanent, and solely because of such employment. We hold, therefore, that at the time of his death. Tucker was within the protection of said [Federal] Act."^^ But where a fireman whose run was wholly wdthin the state, having- oiled and prepared his locomotive, which was not then attached to a train of cars, was killed while 'cros&ing the tracks to his boarding-house for a personal purpose ; and liis locomotive was to have hauled some interstate freight, but the road upon which it was run was not an interstate carrier, though the lessee was engaged in such commerce, it was held that the Federal statute did not apply to him, be- cause at the time of his injury he was not engaged in inter- state commerce.-^* § 37. Injured servant employed in both interstate and intrastate commerce. — Few servants of an interstate railroad are employed wholly in intrastate -commerce, and so few are employed wholly in interstate commerce. The fact ia that all servants connected with the traffic operations of such a railroad are engaged both in inter and intrastate com- merce during their employment. If such a servant be in- jured while engaged in intrastate commerce, then he cannot invoke the aid of this statute to enable him to recover dam- ages; but if he be injured while engaged in interstate com- 23 Philadelphia, B. & W. R. Co. who sells a ticket to a traveler V. Tucker, 35 App. D. C. 123. going bej'ond the state, the car -3" Zachary v. North Carolina R. cleaner who cleans the car he is Co. (X. C.) 72 S. E. 858. "If the to travel in, the man who loads contention of the defendant [plain- the engine tender with coal which tiff] can be maintained, then it is to pull him, and the gate follows that all employees of rail- keeper who examines his ticket and ways that do an interstate business passes him into the car, are all are necessarily employed in inter- employed in interstate commerce." state commerce. The ticket seller, 74 FEDERAL EMPLOYERS' LIABILITY ACT. merce, lie may. The fact that he is sometimes engaged in intrastate commerce in no way prevents his resorting to the statute when injured while engaged in interstate com- merce. "The distinction should be noted that the act will not necessarily apply to the same persons in all details of his employment. One man might have duties including both interstate and intrastate commerce, and he would not be subjeict to the act while engaged in one and not the other." ^* "Any" employee "while" engaged in interstate commerce is embraced within the terms of the statute. He can invoke the statute for an injury received "while" he is engaged in interstMe commerce. It is not enough for him to show that he was- engaged generally by an interstate railroad company.-^ He must go further and show that he received 'his injur}'- "while" engaged in interstate oommerce for the company. Thus an engineer hauling an intrastate train loaded entirely with intra"stat.e traffic is not within the terms of the statute if he be injured, for he is not injured "while" engaged in interstate commerce, though he would be if there was any interstate traffic aboard the train. In one case the plaintiff was a brakeman on a train loaded both with interstate and intrastate traffic. The train as such was made up to run from one point within a state to another within it. On reaching a station inidway a car loaded wholly with intrastate commerce Avas to be left. That part of the train back of it was cut loose; and it was then hauled up the track past a switch and then that part of the train in front of it was backed rapidly so as to make a "running switch." In so doing he fell off the rapidly moving car and was injured. It was held that he was in- jured while engaged in intrastate commerce and not inter- state commerce.-^* 24 Oolasurdo v. Central R. R. of -'^ Tsmura v. Great NQrthorn Ry. N. J. 180 Fed. 832; Zikos v. Co. 58 Wa>sh, 316; 108 Pac. 774. Oregon R. & N. Co. 179 Fed. 893; 25 Van Brimmer v. Texas & P. Horton v. Seaboard Air Line R. Ry. Oo. 190 Fed. 394. Co. (N. C.) 7-2 S. E. 958. The statute applies to the em- TO WHAT EMPLOYEES STATUTE APPLIES. 75 § 38. Employees covered by statute. — It is beyond de- bate that the statute embraces all engineers, firemen, brake- men and conductors employed at the time of their injuries upon an interstate train. In one case it is said that the statute covers a telegraph operator dispatching trains,^" and in that same case it is said that Congress meant to in- clude everybody whom it could include. As we have seen, it has been held that a section hand or track repairer on an interstate railroad track, or over which interstate traffic passes, is embraced within the statute,-^ although that deci- sion has been declared unsound.-^ It includes a car re- pairer in a switching yard repairing interstate cars.-'' Since cars upon the terminal tracks of interstate railroads are regarded as within the Safety Appliance Act of 1893, it is a legitimate conclusion that all employees handling therein cars upon such tracks used as interstate cars are embraced by this statute of 1908.^" No doubt, it is believed, but what a freight handler of interstate freight in loading and un- loading cars in which it is to be or has been carried is covered by the terms of the statute. So are mechanics or repairmen, while engaged upon interstate cars, engines or other interstate instrumentalities, and even while passing over the railroad for the purpose of repairing such cars, engines or instrumentalities. Likewise the members of an emergency crew while at work upon any interstate train or any railroad track that is a highway of interstate com- merce. Linemen fall within its terms. Not only are track repairers within its terms, but also those who construct or repair the signal wires used by an interstate railroad, even though they be used without discrimination between the nloyees of a railroad company New Jersey, liSO Fed. 832. employed on a feriy boat, owned 27 Sec. 29 and Sec. 30. and ope^rated by the company in 28 s«c. 32. interstate commerce in connection 29 gee. 31. with its railroad, and supersedes ^o See .Johnson v. Great Northern a state statute on the subject. The Ry. Co. 178 Fed. 643; Chicajzo Passaic, 190 Fed. 644. ' Junction Ry. Co. v. King, 169 26 Colasurdo v. Central R. R. of Fed. 372. 76 FEDERAL EMPLOYERS' LIABILITY ACT. local or interstate character of its traffic. Courts have not yet gone so far as to hold tiiat engine wipers in round- houses or shops injured while wiping such engines, are engaged in interstate commerce, although the engine is habitually used in hauling interstate traffic. Nor have they passed upon the question of a mechanic repairing such an engine in a roundhouse or in a shop ; or a carpenter in repairing a car. Perhaps it may be said that such an engine or car for the time being has been withdrawn from inter- state commerce, and therefore an employee repairing them is not engaged in such commerce. But in the instance of repairs to an engine at the end of its route, while in a round- house, which do not prevent it from being taken on its next appointed trip, it is very difficult, if impossible, to say that it has been withdrawn from interstate commerce. And this might be true of a car loaded with interstate traffic removed to a shop for repairs where its delay is only for a short period, or possibly for a long period. In the case of yard- men engaged in making up an interstate train, under the liberal construction given these Federal statutes by the courts, there is no doubt but what they will be held within the terms of this Employers' Liability Act. In the case of clerks in the accounting department, although they be en- gaged in keeping the accounts of interstate shipments, it is difficult to see' how they are engaged in interstate commerce as used in this statute ; for their work is not of a hazardous character, such as it seems that Congress had in mind when it enacted this statute. And this is also true of ticket sellers; but not station agents when handling interstate traffic. § 39. Relation between the employment and the accident. — The statute expressly liiuils tlie right of recovery to a "person suffering injury while he is employed by such carrier in such commerce," namely, in interstate commerce in the states or general commerce in the territories. If the injury arises from a cause in no manner connected with or arising TO WHAT EMPLOYEES STATUTE APPLIES. 77 out of his employment, then he cannot recover damages under this statute. Tliis is empliasized, as it were, by the title of the Act, which is "An Act relating to the liability of common carriers by railroads to their employees in cer- tain cases." The accident must occur or the injury be received from a cause which arises out of or is incidental to railway employment. As was said in an English case, on an analogous question, there must be "some casual rela- tion between the employment and the accident."''^ Thus where a workman A maliciously threw a piece of iron at workman B, which struck the eye of workman C who was at work, it was decided that a workman who was injured through the tortious act of a fellow-workman, which had no relation whatever to their employment, had no claim against his employer, on the ground that the injury did not arise out of the employment. "It seems to me," said the court, "that in such a case the accident would not arise 'out of or in the course of the employment.' It would not be an accident of the employment at all. It would be entirely outside the scope of the employment of the doer of the act and of the injured workman. * * * It seems to me, as a matter of law, that we cannot say that the injury caused by a missile thrown by another workman entirely outside the scope of his emplojanent was caused by an accident which arose out of his employment."'- "The test," said an American judge, "of the employer's liability is not the fact that the negligent act of the servant was during the existence of his employment ; nor is the fact that his act was done during the time he was doing some act for his em- ployer. But the test is: was the act causing the injury done in the prosecution of the m.aster's business?"^-* In 31 O'Brien v. Star Line Limited, Chicago v. Barker, 131 Fed. 1^61; 1 Bntterworth's Workmen's Com- Bowen v. Illinois Central R. Co. pens.xtion Cases. 177, 181. 136 Fed. 306; St. Louis S. W. Ry. 32 Armitage v. Lancashire & G. Co. v. Harvey, 144 Fed. 806; Ng. Co. 4 Minton-Senhose Work- Morier v. St. Paul, M. & M. R. men's Compensation Cases, 5. Co. 31 Minn. 351; 17 N. W. 952, 32a Jackson v Chicago, R. I. & and Hudson v. ^lissouri, K. &. T. P. Ry. Co. 17i J'ed. ^432, citing R. Co. 16 Kan.. 470. 78 FEDERAL EMPLOYERS' LIABILITY ACT. another English ease it was said: "But where the servant, instead of doing that which he was employed to do, does something which he was not employed to do at all, the master cannot be said to do it by his servant," ^^ and in another ease, "but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable."^* § 40. Who must inflict injury to render railway com- pany liable. — In the first section of the statute the railway company is rendered liable only where the injury or the death results in whole or in part from "the negligence of any of the officers, agents, or employees" of the carrier company. This aside from defective or insufficient appli- ances, cars, engines, machinery, track, roadbed, works, boats, wharves, or other equipment. It necessarily follows where the injury is inflicted by one of the persons enumer- ated that the negligence to be actionable must be that of such persons in the capacity of officers, agents, or em- ployees as such. This negligence must be incidental and relate to the company's business — having some natural rela- tion to the employment or to its business. If the injury or death is received from a cause entirely disconnected from the employment, or at a time and place disconnected from it, there is no liability on the part of the company. § 41. Interstate employee injured by negligence of intra- state employee. — The statute wipes out the rule of fellow- serv^ant. Then, if an employee is injured while engaged in interstate commerce by the negligent act of an intra- 33 Mitchell V. Crassweller, 13 "■* Joel v. ]\Iorrison, 6 C. & P. C. B. 235. 501. TO WHAT EMPLOYEES STATUTE APPLIES. 79 state commerce servant, can he recover? Unquestionably he can. The test is, "was the servant injured while engaged in interstate commerce by the negligence of his employer?" If he was, he may recover, and it matters not that the ser- vant inflicting the injury w^as engaged only in intrastate commerce. It would be just as logical to claim that the company was not liable because he was injured by an instrument not used in interstate commerce, for which no one would seriously contend. Such an instance would be where an employe is injured by the collision of his train with an intrastate train. A rule that there could be no recovery in such instances would to a great extent nullify the usefulness and object of the statute. "Whenever it is a nec- essary incident to the regulation of interstate commerce, Congress can control, to that extent, intrastate commerce. Unquestionably Congress can, if necessary to protect in- terstate employes, treat interstate employes simply as employes of the company and impute their negligence to the company. Nor can it be claimed that the act is void because it invades, on this point, the police power of the state and because the United States has no police power ; for, although the police power of the state is os- tensibly exclusive to it, and the Federal Government has no police power in itself, yet Congress may, under the constitution, pass all laws which are essential to make ef- fective the powers belonging to it. If it, therefore, becomes essential for Congress to exercise powers that invade police regulations of a state, for the purpose of making effective its powers, it may do so.^^ "The effect of the statute is to abolish, to the limited extent indicated [therein], the com- mon law doctrine which forbade the recovery of damages for injuries to employees sustained by the negligence of fellow-servants. The act also, in other provisions not under S5 Watson v. St. Louis, I. M. & flicted by an interstate employee, S. Ry. Go. 1©9 Fed. 942; affirmfd although that was a mere expres- 32 Sup. Ct.. — sion not amounting even to a die- In Zikos V. Oregon R. & N. Co. turn. 179 Fed. 893, there is an intima- tion that the injury must be in- 80 FEDERAL EMPLOYERS' LIABILITY ACT. consideration here, modifies the rule of contributory negli- gence and the doctrine of assumption of risk. "It is the relation only between the carrier and the employee who is injured while he is engaged in interstate or foreign commerce that is regulated by the imposition of the liabil- ity mentioned. The fallacy of the contention that the act seeks to regulate the relations between the carrier and its employees who are not engaged in interstate commerce, is shown by the fact that no change whatever is made by the statute in their relations, no liability being imposed upon the carrier for injuries suffered by an employee when not engaged in interstate commerce by reason of the neg- ligence of a fellow-servant. "It is manifest that the primary object of the statute in question was not simply to give a right of action where none before had existed, but, by imposing a liability upon the carrier for injury suffered by an employee while en- gaged in interstate commerce through the negligence of a fellow-servant, or by reason of any defect due to its neg- ligence in its cars, engines, appliances, etc., to insure a greater degree of care on the part of the carrier for the protection of the employee while engaged in interstate or foreign commerce, and of the persons and property whose safety might be dependent upon the safety of such em- ployee. The statute is founded on a different view as to the requirements of public policy in respect to matters of this kind from that anciently entertained by the courts who formulated the common law doctrine. In this aspect of the case, it is immaterial what may be the nature of the agency, whether animate or inanimate, that causes such injury, provided it may be something for the negligent conduct or existence of which the carrier may properly be made responsible. "Take the subject of inanimate things, for instance. Sup- pose a railroad company engaged in interstate commerce so negligently constructs a bridge across its road that an employee while engaged in such commerce is injured TO WHAT EMPLOYEES STATUTE APPLIES. 81 thereby, the bridge being used for the convenience of local traffic only. Will it be said that Congress could not impose a liability upon the railroad company for its negligence in that regard, and that if it did so it would be regulating intrastate commerce? What difference in principle is there between the case suggested and that of a railroad engaged in interstate commerce which, through the negligence of its officers, agents and emplo^^ees, so negligently runs a local train upon its interstate lines as to injure an employee upon an interstate train while he is engaged in such com- merce? In applying the rule of respondeat superior to such cases Congress has only undertaken to impose a liability upon the carrier to the extent necessary for the proper protec- tion of interstate commerce. "If Congress cannot make the carrier liable for injuries suffered by an employee while he is employed in interstate commerce, caused by the negligence of any of the other employees of the carrier, irrespective of the nature of the business in which the latter may at the time be employed, manifestl}^ it cannot protect such employee, and through him the interstate commerce in which he is employed, against a very large percentage of the injuries which are likely to occur to him and for which the carrier should properly be held responsible. "It is further to be observed that, although the agency of the carrier, animate or inanimate, which may occasion injury to an employee while he is engaged in interstate com- merce, may not itself be engaged or employed in such com- merce, yet, necessarily, in order to come within the scope of the act, it enters the domain of interstate commerce, else no injury would be suffered by the employee engaged in such commerce. In other words, in every such case the master, through his agents, negligently, and hence unlawfully, al- lows an obstruction to be placed in the way of the safe conduct of interstate commerce, by which the employee engaged therein is injured. 82 FEDERAL EMPLOYERS' LLIBILITY ACT. "It is suggestive of the weakness of the present con- tention that no such objection was ever made with regard to the original act in the Employers' Liability Cases. In fact, it was practically conceded in those cases that if the statute could be construed to limit the liability of the carrier to its emploj'ees wlien or while such employee was engaged in interstate commerce it would be constitutional, so far as any objection of this kind was concerned. In the present statute Congress has imposed that limitation. The act does not undertake to regulate the relations between the carrier and its employees who are not engaged in interstate com- merce. The reLations between the carrier and such em- ployees remain precisely the same as if the statute had not been passed. No relief whatever is afforded them by the act. They only enter into consideration, as the agents of the carrier, in determining the liability between the carrier and its employees who suffer injury while employed in interstate commerce. *'As stated, the fallacy of the contention that the act is unconstitutional lies in the assumption that the Congress has in some way regulated the relationship between the carrier and its employees who are not engaged in inter- state commerce at the time of an injury coming within the terms of the act. If the relations between the carrier and such employees are changed in the slightest degree by the act, it should be a simple matter to point out the change. If they are not changed, the contention made is untenable. "It is true the act imposes a liability upon the carrier for the negligence of its employees who may not be em- ployed at the time in interstate commerce. But the liabilitj'' imposed is to its employees who suffer injury by reason of such negligence at a time when they are employed in inter- state commerce. No duty, no liability, no responsibility is imposed upon the carrier with respect to its employees who may occasion such injury. "It seems unnecessary to carry this discussion further. If Congress cannot protect an employee while he is en- TO WHAT EMPLOYEES STATUTE APPLIES. 83 gaged in interstate commerce from the negligence of the railroad carrier to the extent provided in this act, it is shorn of the plenary power to regulate commerce that has been so often asserted."^® § 42. The Nebraska statute.— Some little light may be thrown upon this point by a decision of the Supreme Court of Nebraska in construing a statute of that state. An em- ployee of a railroad company was a helper in a blacksmith- shop of the company, and at the time of his injury was assisting in flattening iron washers at a steam hammer. He charged that his injuries were caused by the careless- ness of the employee operating this hammer. These washers were used for repairs to cars and engines. The action was brought upon a statute of the state which provided "that every railway company operating a railway engine, car, or train in the state of Nebraska shall be liable to any of its employees, who at the time of injury are engaged in con- struction or repair work, or in the use and operation of any engine, car, or train for said company." The railroad company contended that the employee plaintiff was not wdthin the class protected by the statute, because he was not injured through a risk or hazard incident and peculiar to the business of constructing, repairing and operating railroads; but the court pointed out the clause ''or in the use and operation of any engine, car or train for said com- pany, " as applicable to the case and covering it, saying: "It is clear from this wording of the statute that the legislature intended that the fellow-servant rule (not law) should not apply to any of the employees of any railroad in the state who were either engaged in the operation of engines, cars, or trains, or were engaged in construction or repair work. Substantially the same reason sustains the entire classification; that is to say, there are dangers in- herent in and peculiar to all the vocations described in the 3s Quotation from brief of the States in Watson v. St. Ivouis, I. Attorney-General of the United M. & So. Ry. Co. 169 Fed. 942, affirmed 32 Sup. Ct.— 84 FEDERAL EMPLOYERS' LIABILITY ACT, statute, which are rarely, if ever, encountered by employees working for a master not engaged in the operation of a railway. The legislature well knew that substantially ail railway construction or repair work is dangerous, per- formed either in the immediate vicinity of tracks upon which trains are passing or by the use of dangerous ma- chinery, as in the case at bar. Classifications should receive a practical construction, and we are of opinion that a rea- sonable application of the law to the facts in the case before us not only brings the plaintiff within its purview, but for- bids a holding that the law itself is obnoxious to the Con- stitution of the United States or to the Constitution of the state of Nebraska. "We must not be understood as deciding that all Avork of construction or repair of any article or structure performed in the service of a railroad company comes within the purview of the statute. The work of a railroad company is divided into many departments. The duties and hazards of employees in one department may be as dissimilar from those in other departments as are those of a clerk or bookkeeper in the uptown headquarters from those of pn engineer or brakeman on a train ; and questions may hereafter arise as to the scope of the act under con- sideration, which we do not now decide. But, where the work of construction or repair is as closely connected with the actual operation and use of the railroad as the work of the present plaintiff, it seems clear that it is within the class of hazards covered by the act."^'' § 43. Validity of statute allowing a recovery for an in- jury occasioned by an intrastate employee. — The validity of this Act has been vigorously attacked in so far as it allows a recovery for an injury inflicted upon an interstate employee by the negligent act of an intrastate employee, but so far without avail. "As the powers of Congress," said Justice Trieber, "are limited to those granted by the 87S\vol>oda V. Union Pacific R. Oo. 87 Neb. 200; 127 X. W. 215. TO WHAT EMPrX)YEES STATUTE APPLIES. 85 Constitution, and the only provisions of that instrument authorizing such legislation is the commerce clause, and that is limited to 'commerce with foreign nations and among the several states and Indian tribes,' it can, of course, only legislate for the safety of those employed in those branches of commerce, and not in intrastate carriage. That is all the act under consideration attempts to do. It is limited to those who are in the employment of railroads engaged in commerce between the state, and while they are actually engaged in such employment. What difference does it make what the employment of the fellow-servant is — whether interstate or intrastate? The safety of the em- ployees of an interstate train, as well as of the passengers entrusted to their care, can in no wise be affected by that. Congress having the exclusive power to regulate interstate commerce, that power necessarily^ includes the right to regulate the relation of master and servant operating such trains and legislate for the safety of the employees.^^ If the contention of defendant is sustained, the effect would be that although the emplo^'^ee of a carrier by rail engaged in interstate transportation is injured while engaged on an interstate train, if the cause of the injury was the negli- gence of a fellow-servant not engaged at the time in inter- state work. Congress is powerless to provide for a recovery of compensation for the injuries suffered. Therefore, if an engineer or fireman on an interstate train is injured by reason of the negligence of a switchman or other employee of a train operated on a branch line, which is used exclu- sively for intrastate business, the failure of Congress to except such accidents from the provisions of the statute makes it unconstitutional as being in excess of its powers under the Constitution. The same result would follow if a telegraph operator on such a branch line fails to transmit 38 Citing Johnson v. Southern Co. 205 U. S. 1 ; 27 Sup. Ct. 407 ; Pacific Ry. Co. 1% U. S. 1; 25 51 L. Ed. 681; and Employers' Lia- Sup. Ct. 158; 49 L. Ed. 363; bility Cases, 207 U. S. 498; 28 Sohlemmer v. Buffalo, etc., Ry. Sup. Ct. 145; 52 L. Ed. 297. 86 FEDERAL EMPLOYERS' LLVBILITY ACT. or deliver a message from the train dispatcher directing the conductor of the interstate train to go on a siding for the purpose of letting an intrastate train pass on the main line, and by reason of such negligence there is a collision. In State v. Chicago, Milwaukee & St. Paul R. Co.,^^ the court, speaking of a similar question, said: 'The direction and dispatching of every train on an interstate railway necessarih^ involves knowledge in the train dispatcher of all other trains Avhich are in the same vicinity at the same time, and also an ability to control such other trains. An interstate train from Milwaukee to Chicago cannot be safely forwarded if, under the direction of a separate employee, a local train may be moving between ^Milwaukee and Kaeine over the same track at the same time, or nearly so. The very switching at local stations must be within the knowl- edge and under the control of him who is to decide upon and direct the most important of interstate transportation. Obviously division of authority over these subjects would be fraught with great perils and delays to both kinds of transportation. Hardly any act of a train dispatcher on a busy railroad can be conceived which does not affect both interstate and domestic commerce. He cannot move or stop the most distinctively local train without affecting the interstate train, or vice versa. No extra or special can be put on the division without adjustment of other trains. Of course, also, every interstate train carries some purely intra- state freight or passengers. IMany purely domestic trains carry some freight or passengers in transit to extrastate destination. It would seem that any severance of control over state from interstate trains involved so much of con- fusion and probability of danger, and its possibility even is so doubtful and experimental that no legislature would absolutely precipitate it without careful consideration, nor without providing in the act for the event of failure of such experiments.' There is nothing in the Employers' Liability Cases to warrant the construction claimed on behalf of de- 39 1.3G Wis. 407; 117 N. W. f>86. TO WHAT EMPLOYEES STATUTE APPLIES. 87 fendant. What the court did decide in that case was that as the act under consideration included all employees of an interstate carrier, even if they (the employees) were en- gaged in an employment wholly disconnected from the interstate business, citing 'employees of a purely local branch operated wholly within a state, employees in repair shops, construction work, accounting and clerical work, storage elevators and warehouses, not to suggest, besides, the possibility of it being engaged in other independent enterprise,' and then held that: 'As the act thus includes many subjects wholly beyond the power to regulate com- merce and depends for its sanction upon that authority, it results that the act is repugnant to the Constitution.' No doubt Congress, had it seen proper to do so, could have limited it to certain fellow-servants, such as are employed only in interstate service or in the same or different depart- ments of the common employment, as has been done by some of the states. See acts of Arkansas, Indiana, Massa- chusetts, Mississippi, Missouri, Montana, Ohio, Oregon, South Carolina, Texas, Utah, and Virginia. But the failure to do so cannot invalidate the act." The court then reviews many cases under like statutes and concludes that "the act in controversy is a valid exer- cise of the power granted to Congress by the Constitu- tion."""^ 40 Watson v. St. Louis. I. M. & no such a proposition as therein S>. Ry. Co. 169 Fed. 942; affirmed laid down having been argued in 32 Sup. Ct. — the briefs: In this the court makes the "Thus, the liability of a common following quotation from the opin- carrier Is declared to be in favor ion of Justice White in the Em- of 'any of it.? employees.' As the ployers' Liability Cases, 207 XJ. S. word 'any' is unqualified, it follows 498; 28 Sup. Ct. 145; 52 L. Ed. that liability to the servant is co- 297, and says that the italicized extensive with the business done portion does not appear in the by the employers whom the statute opinion. It certainly appears in embraces: that is^ it is in favor the official report of the opinion. of any of the employees of all The court examined the record of cvarriers who eTigafred in interstate the case in which this opinion was commerce. This also i^ the rule as rendered and held that the words to the one who otherwise would he in italics was a mere obiter dictum, 88 FEDERAL EMPLOYERS LLVBILITY ACT. a jellow scrvunt, hy whose negli- gence tlu; injury or death may have been occasioned, since it is pro- vided that the right to recover on the part of any servant will exist, althovgh the injury for ivJiich the carrier is to he held rcstiltcd from negligence of any of its officers, agents or employees.' " Tlie validity of this act in this particiihir rcspoet has been prac- tically upheld in Zikos v. Oi-egon 11. &'n. Co. 179 Fed. 8!)3. "No donbt is suggested that the requirement of safety appliances on cars that are actually laden with interstate traffic ia a regulation of interstate oonmierce. Xow, if the same interstate carrier may haul on the same interstate highwiy, cars that need not be equipjx^d be- cause, though regularly used in interstate traffic, they are empty at the time (Wabash Ry. Com- pany), and also cars that need not l>e equip]ied because tliey are laden with intrastate traffic exclusively (Elgin R. Company), the purpiability Cases, for there the statute was over- thro\\m only beeause an inseparable part of it was found to liave no necessary relation to the security of interstate transportation." Wa- bash K. Co. V. United Stiites, 108 Fed. 1. "Is the act in excess of the power of Congress in that it regulates such relation as to intrastate em- ployees by making the carrier liable for their negligence to inter- state employees?" Having detennincd that the reg- iilation of the relation of master and servant as between an inter- state carrier and its interstate e7nployec is a regulation of com- merce, we nnist answer the ques- tion as to whetlier or not the rule established by the act goes Ix^j'^ond the power of Congress in that it regulates such relation as to intra- state em])loyees by making the carrier liable for their negligence to interstate employe(^s. This act, projierly construed, in- cludes injuries siill'ered by a serA'fint while he is employed in interstate commerce through the negligence (»f any of tlie oOicers, agents, or employees of the carrier, whether or not the latter were employed in such ecmimcrce. All that the act does in this particular is to regulate the rela- tion of a common carrier engaged in interstate commerce to its em- ployee while engaged in such com- merce. In order to protect the interstate employee it imposes a liability on the int-erstate carrier. It alxilishes the comniion law doctrine which forbade the re- covery of damages for injuries to employee's sustained by the negli- gence of fellow servants. 'I'his it does only as to employees engaged in interstate conunerce. No change is made with respect to the rights of an intrastate employee or the duties of a. carrier to such servant. It is submitted that under the com- merce clause, wherever it is a TO WHAT ICMl'I^JVEEH STATUTE APPLIES. 89 necessary incident to rej^lation of inters-tate commerce, CVjngress can control intrastate commerce. There is only one sovereign power over interstate commerce — the power of Federal government. In the exercise of tiiis sovereign power, to regulate interstate com- merce, Congress is absolutely un- trammeled by any riglits of the stakes, or by any rights of corpora- tions derived from states. Anything conflicting with the Federal sov- ereigntj' over interstate commerce must give way to the ample and conclusive power over this subject conferred ujx)n the national gov- ernment. No authority derived from the states can be permitted to conflict with the Federal power. When Congress acts upon any sub- ject relating to interstate com- merce, all state regulation of the same subject is suspended This is true to the same extent that state insolvency laws are sus- pended while a national bank- ruptcy act is in force. It will be conceded that the Federal power is ample in bank- ruptcy cases to affect purely local transactions of merchants, where the rights of cretJitors generally may be affected. Where such rights of general creditors are in- volved the Federal power assumes the adjustment of relations arising out of rights otherwise controlled exclvLsively by local law. The same is true when rights otherwise exclusively local con:e into conflict v.'ith rights founded on FcKleral laws regulating inter- state commerce. In such cases it is essential that such local rights be regulated in order that inter- state regulation may be made rea- sonabl}' effective. Inherent in the Federal sovereignty over tlie whole subject of interstate commerce, and essential to its maintenance, is the power to make any incidental regii- lation of annmerce witliin the states, in cases in wliicli such in- triLstate regulation is neces^^ary to the complete, uniform, and orderly regulation of interstate commerce. 'Jills Federal power to regulate locjil affairs exists, however, only when incidental and only so far as rea.'wnably necessarj' to the regulation of interstate commerce. This p<:)wer, it must Ijc und< rstood, does not extend to the regulation of inti-astate commerce, as sucli, but merely to such intrastate com- merce as is so intimately related to interstate commerce, or so com- mingled with it, that the latter cannot be regulated without affecting the former. Intrastate commerce may be affected by Fed- eral laws relating to interstate commerce where tlie latter power could not be reasonably and effec- tively exercised without so affect- ing the domestic power of the state. In protecting interstate em- ployees, Congress can fix upon a carrier liability for the negligence of any of its servants. Such negli- gence then becomes the negligence of the carrier, and it is immate- rial whetlier the employee CJiusing such injury is engaged in intra- state or interstate commerce. His negligence is imputed to the com- pany. If Congress has the power to create certain rights in favor of interstate employees, it can by appropriate legislation make those riglits effective. It may if neces- sary invade the police power of the state. Although it is often said that the Federal government lias no police power in itself, yet Congress may exercise police regulation for the purpose of effecting iriweri that belong to it. If in regulating 90 FEDERAL EMPLOYERS' LIABILITY ACT. commerce it becomes necessary to pass a law similar to one passed by a state under its police powers, Congress may do so. In regulating this relation be- tween the interstate employee and his employer, it is immaterial whether the injury is caused by a defective machine, another inter- state employee, or an intrastate workman. The liability is from the int-erstate employer to the in- terstate employee. 'Congress may so far as the question of power is concerned ignore the cause of the injury. Power over railroads is identical with power over maritime com- merce. The latter power has been held to extend to a law limiting the liability of ship owners. The power to limit is no greater than the power to extend. If Congress may, tlierefore, increase the liabil- ity of ship owTiers for tlie perils of the sea, why may not legisla- tion be just as constitutionally enacted extending tlie liability of railroads for similarly hazardous perils ? The imposition of this liability upon a carrier has a direct tea- dency to promjote greater care and diligence on tlie part of the carrier in complying with statutory as well as the common law obliga- tions for safety. The expression of Judge Taft in Xarramore v. Cleveland, C, C. & St. L. Ry. Co. O'G Fed. 298, 300), is in point. He said, speaking of a statute of Ohio requiring railroad companies to block tlie frogs, switches, and guard rails on their tracks, under penalty oi a fine (our italics) : "* * * The expression of one mode of enforcing* it did not ex- clude the operation of another, and in many lespects more efficacious, means of compelling coTnpliamcn with its terms, to-wit, the right of civil action against a delinquent railway company by one of the class sought to be protected by the statute for injury caused by a fail- ure to comply with its require- ments. * * *." €ongi"ess has here throwTi the cloak of protection over interstate employees. It has given to those employees certain rights not pos- sessed by otliers not so employed. It affords this protection that they may be more diligent in trans- acting the biisiness committed to them; that their duties may be performed more thoroughly and commerce thereby made more safe. It is the man that is protected in order that commerce may be protected. This man is the agent by which commerce is transported. And commerce is by this legisla- tion regulated. It matters not whether the cause of the injury was animate or in- animate, provided it be of a nature for which the carrier may fairly be made responsible. Can it be said that Congress has the power to make the carrier liable for a defective track, bridge, or ctir and yet not for its animate agent ? To state the proposition is only to demonstrate its unsoundness. Con- gress has said that if the master allows any agency which enters the domain of interstate commerce to become an obstacle to tlie safety of interstate employees, he cannot plead as a defense the fellow serv- ant doctrine. While a servant of an interstate road is alx)ut his master's business and engaged in interstate com- merce, he is entitled to and within the protection of the congressional power. This power reaches out to him in his every act while per- forming liis duty to his employer in the line of interstate commerce, and Congress has placed upon the TO WHAT EMPLOYEES STATUTE APPLIES. 91 railroad the obligation to protect him while so engaged. If he is injured by the railroad, by any of its agents or instrumentalities while in the performance of inter- state duty, that injury is the act of his interstate employer, for Avhich such employer may, accord- ing to every principle of legal responsibility, be made answerable. The injury to him constitutes an interference with interstate com- merce, and Congress has the power to fix the liabiKty of the carrier therefor. If an act of an intrastate serv- ant is so directly connected with interstate commerce that it injures one who is engaged in interstate commerce, the relation of the in- trastate servant to interstate com- merce is so proximate as to bring such act within the power of Con- gress upon the subject. If the servant of an interstate railroad, though engaged in intra- state commerce, comes into siich intimate relation with interstate commerce that his negligence causes injury to a servant of the same master, who was actually engaged at the time in interstate commerce, his connection with interstate com- merce is fixed by this act, and the power of Congress attaches and is enforced by this statute in favor of the employee who meets with such injury. There can be no objection to the application by Congress of the rule of respondeat superior in making an interstate railroad liable to the interstate servant for an injury caused by a local servant. The power which regulates in- terstate traffic extends to the fixing of the liability of the carrier to the men who move such traffic. If the power exists in Congress to regulate the obligations of the carrier for damage to interstate freight, it ought not to be mini- mized in affording a remedy for injury to men engaged in moving interstate traffic. Any employee engaged in con- nection with interstate commerce is subject to Fedt'ral control. His duties may be prescribed. His qualifications may be fixed. His liabilities and those of his master may be determined by Congi-ess. That is all tliat is sought to be accomplislied by this act. When a railroad is engaged in interstate traffic its employees are subject to Federal control, and such regulation is necessary. This is obvious when the fact's as to operation of interstate railroais are carefully examined. Interstate railroads are run as a unit. All the departments and divisions of such railroads are closely correlated and intermingled, and it would be unwise for the court to assume a segregation where, in fact, none exists. It would be a matter of extreme diffi- culty in an interstate railroad to point out any distinct line of demarcation between interstate and intrastate business. The financial affairs of tlie road are managed as a whole. The direction and control of trains are under one head. The general orders covering ali operations of the road come from tlie same general manager. Particular orders as to the dis- patch of trains originate witli interstate train dispatchers. The same engines, cars, and other in- strumentalities are indiscriminately used in interstate and intrastate business. The same tracks are used for 1x)th interstate and intra- state traffic. The most distinctively local branches have physical con- nection with the interstate tracks, and forei.f^n cars, loaded with in- terstate traffic, aaid trains of the 92 FEDERAL EMPLOYERS' LL\BIL1TY ACT. road itself containing cars loaded in wliole or in part witli inter- state traffic, pass indiscriminately over these local divisions. At the ticket offices of every local branch of such a railroad tickets are sold over the entire interstate railroad, and also over extra-state connecting lines. Inas- much as interstate passengers are thus solicited and afterwards car- ried over such seemingly local branches, all engaged in their transportation, and. all co-operating in the maintenance of tlie track for their transportation, are en- gaged in interstate commerce. Every local freight station on the line receives and transmits freight for all other stations on the line, and for points l>eyond the state, and thus all who co- opera4;e in any of tlie work of the receipt or transmission of such freiglit are engaged in interstate commerce. All who participate in the maintenance of the instrumen- talities for the general use of the road, even in the maintenance of such instrumentalities as are used on purely local branches, neces- sarily participate in the work of interstate commerce, because in- terstate commerce is carried on over every part, branch, section, and division of the entire system of such interstate road. This intermingling of both kinds of traffic makes necessary the adop- tion of some uniform system of regulation, and the Supreme Court of the United S.tates has repeatedly held that subjects of the commerce power whicli are in their nature national or admit only of one uniform system of regulation are exclusively within the legislative power of Congress. Coo ley v. The Board of Wardens, etc., 12 How. 299, 319; 13 L. Ed. 996; Ca.?e of the State Freiglit Tax, 15 Wall. 232, 279; 21 L. Ed. 146; reversing 62 Pa. 286; 1 Am, Rep. 399; Welton V. Tlie State of Missouri, 91 U. S. 275, 280; 23 L. Ed. 347; reversing 55 -\Io. 288; Card well v. American Bridge Co., 113 U. S. 205, 210; 5 Sup. Ct. 423; 28 L. Ed. 959; affirming 19 Fed. 562; 9 iSawj'. 662; Robbins v. Shelby County Taxing District, 120 U. S. 489, 492; 7 Sup. Ct. 592; 30 L. Fed. 694 ; reversing 13 L. Ed. 303. (From brief of the Attorney- General of the United States Jn Central of Georgia Ry. Co. v. Waldo, 6 Ga. App. 840; 05 S. E. 1098. CHAPTER V. CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. SECTION 44. Contributory negligence — Statute. Assumption of risk — Statute. Exceptions — Statute. To what statute reference is mada Contributory negligence as a defense. Contributory negligence de- fined. Common law rule of contrib- utory negligence preventing a recovery. Definitions of degrees of neg- ligence. Comparative negligence. Origin of rule of comparative negligence. Georgia statutes. Differs from Federal statute. Georgia statutes construed. Contrilnitory negligence of plaintiff before defendant's negligence began. Burden on plaintiff to show freedom from his own fault. Charge to jury under Georgia Code. Recovery by a railway em- ployee. Widow recovering for death of her husband — Georgia statute — Contributory negli- gence of deceased. Apportionment of damages. An epitome of Georgia cases. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58 59. 60 61. 62. 63. SECTION 61. Comparative negligence in Illi- nois. 65. Kegligence a relative term, 66. Illinois rule extended. 67. Ordinary care wanting — Plaintiff's negligence slight. 68. Want of ordinary care defeats a recovery. 69. Failure to exercise ordinary care more than slight negli- gence. 70. Ordinary and slight negli- gence in their popular sense. 71. Mere preponderance of de- fendant's negligence not suf- ficient — Defendant's clearly exceeding plaintiff's negli- gence. 72. Gross and slight negligence distinguished. 73. Plaintiff's negligence must be compare! with that of de- fendant. 74. Plaintiff's negligence con)- pared with defendant's. 75. Willful injury by defendant — Sliglit negligence of plain- tiff. 76. Mere preponderance of negli- gence against defendant not sufficient. 77. Jnrj must con:pare the neg- ligence of the defendant witli that of the plaintiff. 78. Instructions must require comparison. 93 94 FEDERAL EMPLOYERS LL\BIL1TY ACT. SECTION 79. Illustration — Engine striking liand car — Unlawful speed. Illustration — Mail crane strik- ing fireman. Admiralty suits — Apportion- ment of damages. Origin of admiralty rule. Rule in admiralty com- mended. Difficulty of apj)ortioning cUiniages. Assumption of risk. Contributory negligence does not prevent a recovery — How damages are appor- tioned. Negligence of plaintiff neces- sary to concur with defend- ant's to produce the injury. Court cannot lay down exact rules for apportionment of damages. 80, 81 84. 87 88 SECTIOX 89. statute does not ad)opt the theory of slight, ordinary and gross negligence. 90. Directing the verdict — Due care. 91. Court telling jury particular acts constitute contributory negligence. 92. Rules of contributory negli- gence must be considered. 93. Injury occasioned by defend- ant having violated a safety device statute. 94. Presenting the defense of con- tributory negligence — Bur- den. 95. When contributory negligence does not diminish damages. 96. Examples under Wisconsin statute. 97. Practice under Wisconsin stat- ute. § 44. ContribiLtory negligence — Statute.— Section 3, of the statute provides as follows: "That in all actions here- after brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence at- tributable to such employe : Provided, That no such employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe. ' ' ^ 1 Section 3 of statute. Sections 3 and 4 fall within a class of legislation finding its authority in tlie exercise of a reasonable police power by the legislature in regu- lating the relations of master and servant. It is pretty well con- ceded that those sections are oon- constitutional. Kelly v. Great Northern Rv. Co. 152 Fed. 211. CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 95 § 45., Assumption of risk— Statute. — "That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for in- juries to, or the death of, any of the employes, such employe shall not be held to have assumed the risks of his employ- ment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe."^ §46. Exceptions — Statute. — ''That nothing of this Act shall be held to limit the duty or liability of common carriers or to impair the rights of their employes under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the act of Con- gress, entitled 'An act relating to liability of common car- riers in the District of Columbia and territories, and to common carriers engaged in commerce between the states and between the states and foreign nations to their employes/ approved June 11, 1906."^ §47. To what "statute" reference is made. — The "statute" refered to in the two preceding sections is a statute of the United States and not a statute of a state or an ordinance of a municipality. To construe the word "statute" to mean a state statute w^ould render the Em- ployers' Liability Act of uneven effect throughout the United States and perhaps render it obnoxious to the Fifth Amendment of the Constitution, and also, no doubt in many instances extending the power of Congress over interstate commerce to cases not falling within the scope of interstate commerce. But this does not dispose of the railway com- pany's liability to an employe where his injuries were oc- casioned by the company's violation of a valid state stat- 2 Section 4 of statute. "Clearly sumption of risk." Philadelphia had Section 1 [of tlie Act of 1906^ B. & W. R. Co. v. Tucker, 35 in terms provided that carriers App. D. C. 123, citing Kilpatrick should install and maintain proper v. Grand Trunk Ry. Co. 72 Vt. and sufficient cars, etc., and that 288; 47 Atl. 827. the failure to do so -would render s Section 8 of the statute. The it liable for accidents resulting last statute referred to is the one from such failure and deprive it that -vvas declared unconstitutional of the defense of contributory ncg- in Johnson v. Southern Pac. 'Co. ligence, the carrier would not be 1!>6 U. S. 1 ; 2.5 Sun. Ct. Rep. 158; permitted to defeat the law by 49 L. Ed. 3fi3; reversdng 54 C. C. resorting to the doctrine of as- A. 508: 117 Fed. Rep. 462. 06 FEDERAL EMPLOYERS' LIABILITY ACT, ute. As for instance, the failure of a locomotive engineer to give the required state statutory signals at a railway or highway crossing whereby a collision with another train or a traveler is occasioned, the train derailed and an em- ploye on the train is injured. Other instances might pos- sibly be suggested. In such an instance, no doubt, the state statute could be pleaded to show the statutory negligence of the railway company and thus give the employe a cause of action which possibly he might not otherwise have had.^* § 48. Contributory negligence as a defense. — A careful reading of this section will show that contributory negli- gence is no longer a complete defense as it was at the com- mon law, but is still a partial defense. As a complete de- fense all the rules of the common law are erased at one sweep of the legislative pen ; and although an employe is guilty of contributory negligence he may still recover. But those rules are still in force for the purpose of determining the quantum of damages the employe may recover; for what- ever at common law was contributory negligence is stiil to be considered in determining the relative amount of the employe's negligence as compared with that of the employer.* '* This is the logical conclusion see Rutherford v. Swink, 06 Tcnn. of the Howard case, cited herein 546; 35 S: W. Rep. 554, and Peo- as the Employers' Liability cases, pie v. Harrison, 223 111. 544; 79 207 U. S. 463; 28 Sup. Ct. Rep. N. E. Rep. 164. 143, affirming 148 Fed. Rep. 997. « The statute "permits a recov- Some little analogy can be drawn pry by ^n employee for an injury from the case of Wayman v. caused by the negligence of a co- Southard, 10 Wheat. 1, holding employee; nor is such a recovery that the Kentucky law of execu- ^^^^^^^ ^^^^ ^j,^^ j^ ^,^^ .^.^^^^^ tions, passed subsequent to the i m j. i u i.- i- _, , ' ' . ' , one contributed bv his own negli- Federal Process Act, were not ap- ,,..." „„ ° . ,. , , , ,. 1 • 1 • J genoe to his iniury. Ihe amount plicable to executions which issued , ,, , . ,. . , . ] J 1 T? ,1 1 of the recovery, however, is di- on judgments rendered bv l7 § 49. Contributory negligence defined. — In South Caro- lina the following definition of contributory negligence has been given : ' ' Contributory negligence is the want of ordi- nary care on the part of the person injured by the action- able negligence of another, combining and concurring with that negligence, and contributing to the injury as a proxi- mate cause thereof, without which the injury would not have occurred." ^ § 50, Common law rule of contributory negligence pre- venting a recovery. — The common law rule of contributory negligence which prevents plaintiff recovering damages has been very succinctly stated by the New Jersey Supreme Court as follows: "In this state the established rule is that if the plaintiff's negligence contributed to the injury, so that, if he had not been negligent, he would have received no injury from the defendant's negligence — the plaintiff's negligence being proximately a cause of the injury — he is without redress, unless the defendant's act was a willful each to bear the burden thereof." lous situation that a passenger 60 Cong. Rec, 1st Sess., p. 4434. pays his fare, and if he contrib- See Appendix B. utes to his own injury, he cannot "It appears to me that two em- recover, while two employees paid ployees, by slight negligence, to conduct him safely may by might bring on an accident that tiieir negligence cause an ae- would kill 50 or 100 passengers; cident and kill many persons, and that they would contribute the yet they can recover." Senator negligence that produced the ac- Smith, of Michigan. Ibid, p. 4535. cident, and they would recover for "Cooper v. Ry. Co. 50 S. C. 01; their own negligence. That is ab- 34 S. E. 16; approved in Webster solutely true, if I understand the v. Atlantic, etc., R. Co. 81 S. C. bill, and we do not want to pass 46; 61 S. B. 1080. such a bill. It almost puts a pre- This statute cannot be so turned mium upon a conspiracy among around as to give an employee a employees to be guilty 'of negli- right of action because of his own gence'that they can take advan- contributory negligence, on the tage of their mvn negligence and ^^^""^y ^'\^^ , 1'^^. ^^^"^ negligence, , .?, , , , 1 u • I resulting in his iniurv, is the neer- kill a hundred people besides. ,. r ±i ■^ i ° rri. X • XV. a- X * XI. I -11 " iigeucc of the railroad company. That is the effect of the bill." q°„, „ ^ „x x- i i x -r-,,, • r TT7 X T7- • • i^vich a construction leads to an Senator Elkins, of West Virginia. absurdity 60 Cong. Rec, 1st Sess., p. 4534. "It suggests the very anoma- 98 FEDERAL EMPLOYERS LL\BlLITy ACT. trespass, or amounted to an intentional wrong, and in such a case the comparative degree of negligence of the parties will not be considered.^ In the trial of cases of this kind/ where it appears that both parties were in fault, the primary- consideration is that whether the faulty act of the plaintiff was so remote from the injury as not to be regarded, in a large sense, as a cause of the accident, or whether the injury was proximately due to the plaintiff's negligence, as well as to the negligence of the defendant. If the faulty act of the plaintiff simply presents the condition under which the in- jury was received, and was not, in a legal sense, a con- tributory cause thereof, then the sole question will be whether, under the circumstances, and in the situation in which the injury was received, it was due to the defendant's negligence. But if the plaintiff's negligence proximately — that is, di- rectly — contributed to the injury, it will disentitle him to a recovery, unless the defendant's wrongful act was willful, or amounted to an intentional wrong. A court of law cannot undertake to apportion the damages arising from an injury caused by the co-operating negligence of both parties, or to determine the comparative negligence of each."* § 51. Definitions of degrees of negligence.— In an early day the Supreme Court of Kansas adopted the rule of com- parative negligence, and in discussing the law of negligence the court gave the following definitions and made the fol- lowing observations: "There may be a high degree of dili- gence, a common degree of diligence, and a slight degree of diligence, with their corresponding degrees of negligence, and these can be clearly enough defined for all practical pur- poses, and, with a view to the business of life, seems to be all that are really necessary. Common or ordinary diligence •Citing Xcw .Jersey Exp. Co. v. carelessly into a transit or sur- Nichols, 3.3 N. J. L. 435; Penn- veyor's compass standing in the sylvania R. Co. v. Righter, 42 N. highway. J. L. 180. ' State v. Lauer, 55 N. J. L. 'Driving a team and wagon 205; 26 Atl. 180; 20 L. R. A. 61. CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 99 is that degree of diligence which men in general exercise in respect to their own concerns; high or great diligence is, of course, extraordinary diligence, or that which very prudent persons take of their own concerns; and low or slight dili- gence is that which persons of less than common prudence, or, indeed, of any prudence at all, take of their own con- cerns. Ordinary negligence is the want of ordinary dili- gence; slight, or less than ordinary negligence, is the want of great diligence; and gross or more than ordinary negli- gence is the want of slight diligence. * * * Whoever exercises slight care, and no more, is guilty of ordinary negligence ; whoever exercises less than slight care is guilty of gross negligence, and may be guilty of willful and wanton wrongs. Whoever exercises great care is guilty of less than slight negligence, and may not be guilty of any negligence at all."« § 52. Comparative negligence. — The provisions of sec- tion 3 radically change the common law rule, and it is said to have introduced the rule of comparative negligence, especially as administered in the state of Georgia. That is true in a measure. If the employee has been guilty of negli- gence in contributing to his injuries, then, under this Fed- eral statute, his negligence must be compared with that of his employer in determining the measure of his damages, and to that extent the statute has introduced the rule of comparative negligence, but in a modified condition as will appear in subsequent sections. § 53. Origin of rule of comparative negligence. — In Illi- nois comparative negligence was first announced in 1858 by Justice Breese after a careful consideration of several Eng- lish cases." The rule of comparative negligence Avas enforced 'Union Pacific Ry. Co. v. Rol- R. Co. v. Plovcy, 29 Kan. 169; lins, 5 Kan. 167; Sawyer v. Sauer, Atchison etc., R. Co. v. Henry, 57 10 Kan. 466; Kansas Pacific Ry. Kan. 154. Co. V. Pointer, 14 Kan. 37 ; Kansas " Galena, etc., R. Co. v. Jacobs, 20 111. 478. 100 FEDERAL EMPLOYERS' LL\BILITY ACT. in that state, with manj^ vicissitudes, until the common law rule of contributory negligence was finally adopted, thereby overruling a long line of cases, establishing a doctrine with many refinements, and which, judging from the many errors pointed out in the supreme and appellate courts of that state, were never fully understood by all the nisi prius judges and members of the bar of that state.^^ In the early decisions of Kansas the rule also prevailed where the negli- gence of the injured person was slight and that of the cul- pable individual gross in comparison.^- In that state, how- ever, the rule has been abrogated.^^ In Georgia the rule w^as adopted at an early day, perhaps not in the same sense as the Illinois rule, but with so slight a distinction as to result in practice to little difference.^* In one case it is said that the rule adopted in that state is the rule that prevails in admiralty.^-"^ The several decisions of the Georgia Su- preme Court resulted in the productions of three sections of the code of that state, varying in their terms as applied to different conditions under which the injuries were in- flicted. § 54. Georgia statutes.— The following are the sections of the Georgia code from which some of the provisions of " Tliat the rule of comparative 191; Union Pac. Ry. Co. v. Rol- negligence is no longer in force, lins, 5 Kan. 1G7; Sawyer v. Sauer, see Pennsylvania Coal Co. v. 10 Kan. 46G. Kelly, 156 111. 9; 40 N. E. Rep. "Atchison, etc., R. Co. v. 938; City of Lanark v. Dough- Henry, 57 Kan. 154; 45 Pac. Rep. erty, 153 111. 163; 38 N. E. Rep. 576. ' 892 ; Cicero, etc., St. Ry. Co. v. " For origin of rule, see Macon, Meixner, 160 111. 320; 43 N. E. etc., R. Co. v. Denis, 18 Ga. 684; 823; 31 L. R. A. 331; Cleveland, Central, etc., R. Co. v. Denis, 19 etc., Ry. Co. v. Maxwell, 59 111. Cxa. 437; :Macon, etc., R. Co. v. App. 673; Atchison, etc., Ry. Co. Davis, 28 Ga. HI; Macon, etc., R. V. Feehan, 149 111. 202; 36 N. E. Co. v. Johnson, 38 Ga. 409, 431; Rep. 1030; Illinois, etc., R. Co. Central R. Co. v. Brinson, 70 Ga. v. Ashline, 56 111. App. 475; Calu- 207. met, etc., Co. v. Nolan, 69 111. '=^ Macon, etc., R. Co. v. Winn, App. 104. 20 Ga. 250; see Macon, etc., R. "Caulkins v. Mathews, 5 Kan. Co. v. Johnson, 38 Ga. 409, 432. CONTRIBUTORY NEGLIGENCE .\Js^D ASSUMPTION OF RISK. 101 the Federal Employers' Liability Act were drawn: "No person shall recover damages from a railroad company for injury to himself or his property where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default at- tributable to him."'" "If the person injured is himself an employe of the railroad company, and the damage was caused by another employe, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery. "^^ "If the plain- tiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have con- tributed to the injury sustained."'** § 55. Differs from Federal statute. — Read together these three sections of the Georgia Code ditl'er to some extent in the rule they set forth from that f^dopted in the Federal stat- ute. Thus, the latter statute does not require in any of its provisions that the plaintiff must have been in the exercise of due care or any care, but in Section 3830 of the former if he "by ordinary care could have avoided the con- sequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defend- ant is not relieved, although the plaintiff may in some way "Georgia CJode, 1805. Sec. 2322. abrogated; l)ut tlio injured om- Tt will be noted that by tliis sec- ployee must be free from negli- tion negligence of the injured per- gence contributing to liis injury, son contributing to the injury Under tliis section if the -ser- will not bar a recovery, but will vant injured was himself at fault, reduce the amount he would oth- he cannot recover; nor can the erwise be entitled to recover. damages under this section be ap- " Georgia Code, 1895. Sec. 2323. portioned. East Tennessee, etc.. In this section it will be noted R. Co. v. Maloj% 77 Ga. 237. that the common law rule of the •» Georgia Code, 1895, Sec. 3830. negligence of a fellow servant is 102 FEDERAL EMPLOYERS' LIABILITY ACT. have contributed to the injury sustained." Section 2322 de- clares that the plaintiff shall not recover when the injury to himself "is caused by his own negligence," and then adds that if he and the agents of the railway company be both at fault, he may recover, the damages to be diminished by the jur}^ "in proportion to the amount of default attributable to him." In the section abrogating the fellow servant rule (Section 2323) where he is injured by a fellow servant, he must be "without fault or negligence." It may be well to consider the construction the Georgia Supreme Court has put upon these three sections when taken together.^^* § 56. Georgia statutes construed. — After quoting the three sections of the Georgia code, the Supreme Court of that state put this construction upon them : "It will be seen that, although the presumption is always against the [railroad] company, yet it may rebut that presumption and relieve itself of damages by showing that [1] its agents have exercised all ordinary and reasonable care and diligence to avoid the injury, or [2] it may show that the damage was caused by the plaintiff's own negligence; or [3] it may show that the plaintiff by ordinary care, could have avoided the injury to himself, although caused by the defendant's negli- gence. Upon either of these grounds the defendant may rest his defense. But these rules of law will not cover the facts of every case, for it may be that both the plaintiff and the agents of defendant are at fault, and when they are, then, whilst damages may be recovered, they are to be dimin- ished by the jury in proportion to the default of the plaintiff for his want of ordinary care in avoiding the injury to himself." ^^ In this same case, in a concurring opinion, it is said: "Where one causes the injury- by going where he had no excuse to go, as one of ordinary sense, as under a car in motion, or consents to it by lying down deliberately on IS* It should be observed tliat Coast Line R. Co. 57 Fla. 143; 49 the doctrine of coni[>arative negli- So. 745. geiwe does not apply in (jeoigia i^ Central R. Co. v. Brinson, 64 as between a railway' company and Ga. 479 ; approved. Savannah, etc., its employee. This is clearly R. Co. v. Stewart, 71 Ga. 427; pointed erlv v. Ramsden, 83 111. 354. If it was not shown that the plaintiff did not use ordinary care, or if it was shown that he did not, then tlie rule of comparative neg- ligence had no place in the case. Garfield Mfg. Co. y McLean, 18 111. App. 447; Chicago, etc., R. Co. V. Thorson, 11 111. App. 631; Chicago, etc., R. Co. v. Rogers, 17 111. App. 638; Chicago, etc., R. Co. V. White, 26 111. App. 586; Chicago, etc., R. Co. v. Flint, 22 111. App. 5j02; Chicago, etc., R. Co. V. Dougherty, 12 111. App. 181; Union, etc., Co. v. Kollaher, 12 CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK, 121 § 69. Failure to exercise ordinary care more than slight negligence. — "The word 'diligence,' as used in the defini- tions of the degrees of negligence to which we have referred," said Justice Scholfield of Illinois, "is synonj-mous with 'care.' This is shown by the text in Story immediately fol- lowing the definitions quoted.^* It is there said: 'For he who is only less diligent than very careful men, cannot be said to be more than slightly inattentive; he who omits ordi- nary care, is a little more negligent than men ordinarily are ; and he who omits even slight diligence, falls in the lowest de- gree of prudence, and is deemed grossly negligent.' It can not, then, be legally true, that where the plaintiff fails to exercise ordinary care, and the defendant is guilty of negli- gence only, the plaintiff's negligence is slight and that of the defendant gross in comparison ^\^th each other. ' ' ^^ § 70. Ordinary and slight negligence in their popular sense. — "Giving the words their popular sense, it would rather seem that ordinary negligence would be such negli- gence as men of common prudence indulge in, which betokens only the exercise of ordinary care, and not the want of ordi- nary care, as is suggested. This, where the law requires only 111. App. 400; Wabash, etc., R. Co, that was stronger than the law V. Moran, 13 III. App. 72; Union, justified, being an ignoring of the etc., Co. V. Monaghan, 13 111. App. doctrine of comparative negligence. 148; Toledo, etc.. R. Co. v. Cline, Ohio, etc., R. Co. v. Porter, 92 111. 135 III. 41; 25 N. E. Rep. 846. 437. But the plaintiff did not have " "The definition of gross negli- to exercise the highest degree of gence itself proves that it is not care. Chicago, etc., R. Co. v. intended to be the subject of com- Payne, 59 111. 534; Terre Haute, parison. It is 'the want of slight etc., R. Co. V. Voelker, 31 111. App. diligence.' Slight negligence is 314. 'the want of great diligence,' and It was error to say to the jury intermediate, then, is ordinary that the plaintiff could not re- negligence, which is defined to be cover unless they "believe from 'the want of ordinary diligence.' " the evidence that the injury com- Story on Bailments, Sec. 17. plained of was caused by the neg- ^^ Chicago, etc., R. Co. v. John- iigence of the defendant, and the son, 103 111. 512. plaintiff was without fault," for 122 FEDERAL EMPLOYERS' LIABILITY ACT. ordinary care, is not negligence at all, for in law negligence is always faulty. It is the failure in some degree to use that care which the law requires under the circumstances. In a case where the law demands only the use of ordinary care, and ordinary care is actually exercised, there is in law no negligence whatever. In such case it is not true that the want of great diligence is in law slight negligence. In the popular sense of the words, slight negligence is a slight want of the care which the circumstances demand. A man ob- viously, therefore, may in such case fail slightly to use ordi- nary care, and in the popular sense of the words he would be guilty of slight negligence, and only slight negligence, and this, although he did not do all that ordinary care required. And so of 'gross negligence.' Its popular meaning is a very great failure to use the care which the law requires. It is not essential to gross negligence that there shall be an utter want of care, or, in the language of Story,^® 'the want of even 'slight diligence.' The exercise of slight diligence, where the highest degree of care is by law required, may still leave the party guilty of gross negligence — that is, guilty of a very great failure to exercise the highest care." ^^ § 71. Mere preponderance of defendant's negligence not sufficient — Defendant's clearly exceeding plaintiff's negli- gence. — The mere fact that the defendant's negligence exceeds that of the plaintiff's did not enable the plaintiff to recover. It was only where his negligence was slight as com- pared with that of the defendant's. "But he cannot recover unless the negligence of the defendant clearly and largely exceeds his." "Under the instruction given,^^ although ^ story on Bailments, Sec. 17, time in question, guilty of some is referred to. slijrlit negligence either in the " Justice Dickey, in his dissent- management of his team, or in his ing opinion, in Chicago, etc., E. efforts to escape contact with the Go. V. Johnson, 103 111. 512. engine, still, if they further be- '■"'Even though the jury should lieve, from the evidence, that the believe, from the evidence, that negligence of the railway com- the said Horace Clark was, at the pany, at said time, clearly ex- CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 123 there may have been but slight negligence on the part of the company, and some negligence on the part of the deceased, still, if the negligence of the company clearly exceeded that of deceased, although in the smallest degree, plaintiff might recover. Or, under a case where there is gross negligence on the part of both plaintiff and defendant, still, if that of the defendant was clearly, though in the slightest degree, the greater, a recovery could be had under such instruction. This has not been announced by this court as the law, in any case, and to do so would be unreasonable, and work great injustice and wrong. It is not the law, and hence cannot be sanctioned as such, * * * "We have no doubt this instruction misled the jury in their finding, and it should not have been given. ' ' ^^ § 72. Gross and slight negligence distinguished.— In 1882 the Supreme Court undertook to distinguish "gross" and "slight" negligence by instituting a comparison between them. "In holding that the plaintiff may recover," said that court, "in an action for negligence, notwithstanding he has been guilty of contributive negligence, where his negligence is but slight and that of the defendant gross in comparison ceeded any negligence, if such neg- train while he was traveling upon ligence has been proven, of said a highway which crossed the de- Clark, and was the immediate fendant's railroad there, although cause of his death, then the jury the jury may believe, from the must find the railway company evidence, that the deceased was guilty." himself guilty of some negligence °' Chicago, etc., R. Co. v. Clark, which may have, in some degree, 70 111. 276; Illinois Cent. R. Co. contributed to the injury, yet, if V. Backus, 55 III. 379; Chicago, the jury further believe, from the etc., R. Co. V. Gretzner, 46 III. 83; evidence, that the negligence of Illinois, etc., R. Co. v. Triplett, the defendant was of a higher de- 38 111. 485. gree, or so much greater than This instruction was held erro- that of the deceased that that of neous: "The court further in- the latter was slight in compari- structs the jury that if they be- son, the plaintiff is entitled to lieve, from the evidence, that Gil- recover in this action." Chicago, bert H. Dimick was killed by the etc., Ry. Co, v, Dimick, 96 111. 42. defendant's locomotive engine and ,124 FEDERAL EMPLOYERS' LL\B1L1TY ACT. with each other, it must, of course, be understood the terms 'slight negligence' and 'gross negligence' are used in their legal sense, as defined by common law judges and text writers, for otherwise the terms would convey no idea of a definite legal rule. As defined by those judges and writers, these terms express the extremes of negligence. Beyond gross and slight there are no degrees of negligence. 'Gross gross,' 'grosser gross,' and 'grossest gross,' and 'slight slight,' 'slighter slight,' and 'slightest slight,' are absurd, and, in a legal sense, impossible terms. What is less than slight negli- gence the law takes no cognizance of as a ground of action, and beyond gross negligence the law, while recognizing there may be liability for a trespass because of a particular in- tention to do wrong, or of a degree of willful and wanton recklessness which authorizes the presumption of a general intention to do wrong, recognizes no degree of negligence. The definition of gross negligence itself proves that it is not intended to be the subject of comparison. It is, 'the want of slight diligence.' Slight negligence is, 'the want of great diligence,' and intermediate there is ordinary negligence, which is defined to be 'the want of ordinary diligence.' " ®" ''Chicago, etc., R. Co. v. John- naturally be adopted by a jiin' in son, 103 111. 512, citing Story on giving effect to an instruction Bailments, Sec. 17 ; Shearraan & given by the court." "Nor do I Redfield on Negligence (2d Ed.), concur in the dicta which say Sees. IG, 17: C-ooley on Torts, 631, there are and can be no degrees and Central Military Tract. R. C-o. in gross negligence, and no de- V. Rockafellow, 17 111. 541. groes in slight negligence. The The opinion was delivered by adjectives 'slight' and 'gross' seem Justice Scholfield; and while Jus- to me to be capable of compari- ticft Dickey concurred therein, he son, as most adjectives are. I see did not concur in that part abf)ve no absurdity in saying 'gross,* quoted, sayiui'y that Justice Story 'more gross,' 'most gross.' or in his treatise on Bailments, had 'gross.' 'grosser,' 'grossest,' or not used the terms "gross negli- 'slight,' 'more slight,' 'slightest.' gence" and "slight negligence" in In fact, in the quotation from the sense or in the meaning in Story [Story on Bailments, Sec. which they liad l)een used in the 171 he speaks of 'infinite shades previous Illinois oa«e; "nor does of eare,' from the 'slightest' mo- he give the meaning which would mentary thought to the 'most vig- CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 125 § 73. Plaintiff's negligence must be compared with that of the defendant. — The quotations made show that the com- parison to be instituted must have been the negligence of the plaintiff compared with that of the defendant; and not a comparison of the plaintiff's negligence with Avhat an ordi- narily prudent and careful man would have done under the particular circumstances; nor could the defendant's conduct be compared with what an ordinarily prudent and careful man would have done under like circumstances. The negli- gence of plaintiff had to be compared with that of the de- fendant; and that was w^here the name of "Comparative Negligence" had its origin. If the plaintiff's negligence con- tributed to the injury, then before he could recover it had to appear that his negligence was slight in comparison Avith that of the defendant's, which had to be gross.^^ And an in- ilant solicitude.' In fact, the im- perfection of these definitions of Story leads Cooley, in his work on Torts, p. 630, to say of this classification, that it 'only indi- cates that under the special circum- stances great care or caution was required, or only ordinary care, or only slight care,' and to add, 'if the care demanded was not exer- cised, the case is one of negli- gence.' The terms 'sliglit negli- gence' or 'moderate negligence,' or 'gross negligence,' do not indi- cate ofi"enses of a diff"erent nature, but different degress in offenses of the same nature. I think, therefore, there may be cases in which it may be legally true that the plaintiff has failed in some degree to exercise ordinary care, and that in the same case the de- fendant has oee ' guilty cf gross negligence, wherein the plaintiff's negligence may be slight — that is, may consist of a slight failure to use ordinary care — and that of the defendant gross in compari- son therewith. To my mind the proposition that a plaintiff's neg- ligence is Slight, IS not compatible with the proposition that he has failed in some degree to use ordi- nary diligence." "^ Chicago, etc., R. Co. v. Fiet- sam, 123 111. 518; 15 N. E. Rep. 169; Lake Shore, etc., R. Co. v. Johnson, 135 111. 641; 26 N. E. Rep. 510; Willard v. Swanson, 126 111. 381; 18 N. E. Rep. 548; Village of Jefferson v. Chapman, 127 III. 438; 20 N. E. Rep. 33; Jacksonville, etc., R. Co. v. South- worth, 135 111. 250; 25 K E. Rep. 1093; Christian v. Erwin, 125 111. 619; 17 N. E. Rep. 707; Chicago, etc., R. Co. V. Johnson, 116 111. 206; 4 K E. Rep. 381; Toledo, etc, R. Co. V. Cline, 135 III. 41; 25 K E. Rep. 846; Chicago, etc., Ry. Co. V. Dunleavy, 129 111. 132; 22 K E. Rep. 15; Chicago, etc., R. Co V. Longley, 2 111. App. 505; City of Winchester v. Case, 5 111. 126 FEDERAL EMPLOYERS' LIABILITY ACT. struction which required the jury to find whether the negli- gence of the plaintiff was slight and that of the defendant was gross, but did not require them to compare the negli- gence of the respective parties, and determine from such comparison whether the one was slight and the other gross, was erroneous."- If the plaintiff were guilty of gross negli- gence, then he could not recover,"^ and it was even said that if he were guilty of negligence contributing to the injury, he could not recover.^* If both were equally negligent, there could be no recovery.®" Nor was there any middle ground between slight and gross negligence, the courts refusing to recognize any degrees of negligence. Comparative negli- gence, it was said, did not authorize the jury to weigh the degrees of negligence and find for the party least in fault.<"^ Of the rule one of the appellate courts of the App. 486; Wabash Ry. Co. v. Jones, 5 111. App. 607; North Cliicago, etc., R. Co. v. Monka, 4 111. App. 664; Illinois Central R. Co. V. Brookshire, 3 111. App. 225; Chicago, etc., R. Co. v. Krueger, 124 111. 457; 17 N. E. Rep. 52; affirming 23 111. App. 639; Chi- cago, V. Stearns, 105 111. 554; Chicago, etc., R. Co. v. Fears, 53 111. 115; Illinois, etc., R. Co. v. Slatton, 54 111. 133. *= Chicago, etc., R. Co. v. Dil- lon, 17 111. App. 355; Moody v. Peterson, 11 111. App. 180; Pitts- burg, etc., Ry. Co. v. Shannon, 11 111. App. 222; Union Ry., etc., Co. V. Kollaher, 12 111. App. 400; Chicago, etc., R. Co. v. O'Connor, 13 111. App. 62. •^ Chicago, etc., R. Co. v. Lee, 08 111. 576. •* Cliicago, etc., R. Co. v. Fears, 53 111. 115; Illinois, etc., R. Co. v. Slatton, 54 III. 133. But this is qualified in a later case. Chicago, etc., R. Co. V. Krueger, 23 Til. App. 639; 124 111. 457; 17 X. E. Rep. 52. "'^ Illinois Cent. R. Co. v. Back- us, 55 111. 379; Indianapolis, etc., R. Co. V. Stables, 62 111. 313; Chicago, etc., R. Co. v. Murray, 62 111. 326; Ohio, etc, R. Co. v. Eaves, 42 111. 288; Chicago, etc., R. Co. V. Lee, 68 111. 576. "If both parties are equally in fault, or nearly so, the rule is the same." Chicago, etc., R. Co. v. Van Patten, 64 HI. 510. *^ Wabash Ry. Co. v. Jones, 5 111. App. 606 ; iSTorth Chicago, etc., Co. V. Monka, 4 111. App. 664; Chicago, etc., R. Co. v. Van Pat- ten, 64 111. 510. "It never was the law in this state that the negligence of the parties to a controversy upon that object would be weighed in a scale, where, if it inclined at all in favor of the plaintifl', he might recover against the defendant. Nor, it is believed, has such a rule ever been established by a court of recognized authority, tliat if the negligence of the plaintiff in a case of this kind [a defective town bridge] is a shade less than CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 127 state said: ''The rule of comparative negligence requires and has always required much more than a mere pre- ponderance of negligence on the part of the defendant to authorize a recovery. When the plaintiff is charge- able with contributory negligence, though slight, there must be a wide disparity between liis^ negligence and that of the defendant before he can recover." *'' Gross negligence on the part of the defendant did not excuse the plaintiff from the use of ordinary care.''^ The burden was on the plaintiff to not only show that the defendant's negligent conduct caused the injury, but he had also the burden to show that he was free froid negligence or else that his own negligence was slight in comparison with that of the defendant."'' In that of the defendant, he may be allowed to recover." Provident, etc., V. Carter, 2 111. App. 34. "The doctrine of comparative negligence is founded upon a com- parison of the negligence "of the plaintiff's with that of the defend- ant's. This element of compari- son is of the very essence of the rule. It must not only appear that the negligence of the plain- tiff is slight and that of the de- fendant gross, but also that they are so when compared with each other." Moody v. Peterson, 11 111. App. 180. This instruction has been held to be correct: "If they find, from the evidence, that the plaintiff was guilty of some negligence, but that the defendant was guilty of gross negligence contributing to such injury, and that the plain- tiff's negligence was slight as compared with the negligence of the defendant, still she may be entitled to recover." City of Chi- cago V. Stearns, 105 111. 554. See generally on the subject of this section, Chicago, etc., E. Co. V. Triplett, 38 111. 482; Illinois, etc., R. Co. V. Hetherington, 83 111. 510; Chicago, etc., R. Co. v. Lee, 68 111. 576; Terre Haute, ete., R. Co. V. Voelker, 31 111. App. 314; Chicago, etc.j R. Co. v. Dewey, 26 111. 255; Galena, etc., R. Co. v. Jacobs, 20 111. 4:78; Chicago, etc., R. Co. V. Hogarth, 38 111. 370. The capacity of plaintiff had to be considered in determining the degree of his negligence. Kerr v. Forque, 54 111. 482. "Parmelee v. Farro, 22 111. 467; Peoria, etc., Ry. Co. v. Miller, 11 III. App. 375; Springfield, etc., Ry. Co. V. DeCamp, 11 111. App. 475. "» Toledo, etc., R. Co. v. Cline, 135 111. 41; 25 N. E. Rep. 846: Chicago, etc., Ry. Co. v. Dun- leavy, 129 111. 132; 22 N. E. Rep. 15. '"Chicago, etc., R. Co. v. Haz- zard, 26 111. 373; Chicago, etc., R. Co. v. Dewey, 26 111. 255; Chicago, etc., R. Co. V. Gretzner, 46 111. 74; Chicago, etc., R. Co. v. Simmons, 38 111. 242; Illinois, etc., R. Co. v. Slatton. 54 HI. 133; Ohio, etc., R. Co. V. Shonefelt, 47 111. 497; Chi- 128 FEDERAL EMPLOYERS' LLVBILITY ACT. view of these distinctions and requirements, one of the appel- late courts was justified in its use of the following statement concerning negligence as administered in the courts of Illi- nois: "The doctrine of comparative negligence, as applied to cases where the injury is n'ot willful, seems to be shorn of aril practical meaning. A plaintiff can in no case recover unless he h-as used ordinary care, no matter how gross the negligence of the defend^ant, while if he used ordinary care, his whole duty has been performed, and a comparison of his condu^'t with that of 'the defendant as to the question of negligence would seem useless. ' ' ''^ § 74. Plaintiff's negligence compared with defendant's. — Slight negligence on the part of the plaintiff, in comparison with that of the defendant's, did* not defeat the plaintiff in his cause of action. In determining M'hether or not the neg- ligence of the plaintiff had been slight, that of the defendant had first to be ascertained, and then the comparison be made. It is readily seen that the same negligence of the plaintiff cago, etc., R. Co. v. Cass, 73 111. the base of the car window, and 394; Kepperly v. Ramsden, 83 111. slightly project outside, and 354. thereby had his arm broken in '" Illinois Central R. Co. v. passing a freight train on an ad- Trowbridge, 31 111. App. 190. joining track, his negligence was Referring to an instance where hold slight as compared with that the deceased's negligence had been of tlie railroad company in per- slight and that of the defendant mitting it freight cars to stand reckless, the Supreme Court said so near the track of its passenger of such deceased's conduct. "His train, and he could recover for carelessness may iiave l>een in- liis injuries. Chicago, etc., R. Co. duced by the presumption that v. Pondrom, 51 111. 333. those persons [defendant's em- Slight negligence is not slight ployes] would do their duty." want of ordinary care, but merely Chicago, ete., R. Co. v. Triplott, want of extraordinary care, and 38 111. 482; Illinois, etc., R. Oo. did not prevent a recovery. Grif- V. Hetherington, 83 111. 510. fin v. Willow, 43 Wis. 509; Dreher "Cross negligence is the want v. Fitc-hburg, 22 Wis. 675; Ward of slight care." Chicago, etc., R. v. Milwaukee, etc., Ry. Co. 29 Co. v. Johnson, 103 111. 512. Wis. 144: Hammond v. Mukwa, Where a passenger on a railroad 40 Wis. 35. car permitted his arm to rest on CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OP RISK. 129 in one instance might be slight negligence, while in another it would be more than slight, and defeat him. "Although the plaintiff may be guilty of some degree of negligence, yet if it is but slight as compared with that of the defendant, the plaintiff shall be allowed to recover."''^ "This rule ap- plies even where the slight negligence of the plaintiff in some degree contributed to the injury. ' ' '^- In a subsequent case, in reviewing the doctrine as announced in Jacob's case,^^ it was said : ' ' That the question of liability did not depend ab- solutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care as manifested by both parties, for all care or negligence is, at best, but relative, the absence of the highest possible degree of care, showing the presence of some negligence, slight as it may be. The true doctrine, therefore, this court thought was, that in proportion to the negligence of the defendant should be measured the degree of care required of the plain- tiff. The degrees of negligence must be measured and con- sidered, and whenever it shall appear that the plaintiff's negligence is comparatively slight, and that of the defendant gross, the plaintiff shall not be deprived of his action. ' ' '^^ "Coursen v. Ely, 37 111. 338. 51 111. 333; Illinois Cent. R. Co. ^^Coursen v. Ely, 37 111. 338. v. Backus, 55 III. 370; Chicago, "Galena, etc., R. Co. v. Jacobs, etc., R. Co. v. Dignan, 56 111. 487; 20 III. 478. Chicago, etc., R. Co. v. Gravy, 58 ■''Chicago, etc., R. Co. v. Swee- 111. 83; Chicago, etc., R. Co. v. ney, 52 111. 325. Dunn, 61 111. 384; Indianapolis, "No inflexible rule an be laid etc., R. Co. v. Stables, 62 111. 313; down. Each case must depend Chicago, etc., R. Co. v. Still, 19 upon its own circumstances." 111. 499; Illinois, etc., R. Co. v. Chicago, etc., R. Co. v. Sweeney, Middlesworth, 43 111. 64; St. 52 111. 325 ; Chicago, etc., R. Go. v. Louis, etc., R. Co. v. Manly, 58 111. Triplett, 38 111. 482; Chicago, etc., 300; Toledo, etc., Ry. Co. v'Spencer, R. Co. V. Gretzner. 46 111. 74; 66 111. 528; Illinois Cent. R. Co. Coursen v. Ely, 37 111. 338; Chi- v. Maffit, 67 111. 431; Chicago, cago, etc., R. Co. v. Hogarth, 38 etc., R. Co. v. Payne, 59 111. 534; 111. 370; Illinois Central R. R. Co. Chicago, etc., R. Co. v. Van Pat- V. Simmons, 38 111. 242; St. Louis, ten. 64 111. 510; Peoria Bridge, etc., R. Co. V. Todd, 36 111. 409; etc., v. Loomie, 20 111. 236; Ohio, Chicago, etc., R. Co. v, Pondrom, etc., R. Co. v. Shonefelt, 47 111. 130 FEDERAL EMPLOYERS' LLVBILITY ACT. < 75. Willful injury by defendant— Slight negligence of plaintiff.— "The rule of this court is, that negligence is rela- tive, and that a plaintiff, although guilty of negligence which maj^ have contributed to the injury, may hold the defendant liable, if he has been guilty of a higher degree of negligence, amounting to willful injury. The fact that a plaintiff is guilty of a slight negligence, does not absolve the defendant from the use of care and all reasonable efforts to avoid the injur}'. The negligence of the plaintiff does not license the defendant to wantonly or willfully destroy the plaintiff's property. Each party must be held to the use of all reason- able efforts to avoid the injury, and the negligence of one party does not absolve the other from diligence and cau- tion."" vj 76. Mere preponderance of negligence against defend- ant not sufficient. — ]\Iere i)reponderance of negligence on the part of the defendant over that of the plaintiff's did not au- thorize the plaintiff to recover; and to say to the jury that the plaintiff might recover if the plaintiff's negligence were less than that of the defendant was error, for that authorized a recovery even if the defendant's negligence merely pre- ponderated over that of the plaintiff'. For the plaintiff could recover only where his negligence was slight in com- parison with that of the defendant's negligence."'' 497; Chicago, etc., R. Co. v. Mur- Chicago, etc., R. Co. 83 Til. 405. ray, 62 111. 326 ; Pittsburg, etc., " St. Louis, etc., R. Co. v. Todd, R.'Co. V. Knutfon, 69 111. 103; 36 111. 409; Peoria, etc., R. Co. v. Rockford, etc., R. Co. v. Hillmer, Champ, 75 111. 577. 72 111. 235; Chicago, etc., R. Co. "Chicago, r -.. R. Co. v. Dunn, V. Mock, 72 111. 141; Keokuk 61 111. 385; Indianapolis, etc., R. Packet Co. v. Tlonry, 50 111. 264; Co. v. Stables, 62 111. 313; Illinois Illinois Cent. R. Co. v. Cragin, 71 Cent. R. Co. v. MofTit, 67 111. 431; 111. 177; Toledo, etc., Ry. Co. v. Chicago, etc., R. Co. v. Van Pat- McGinnis, 71 Til. 346; Chicago, ten, 64 111. 510; Chicago, etc., R. etc., R. Co. V. Ca«s, 73 111. 394; Co. v. Lee, 68 111. 576; Chicago, Chicago, etc., R. Co. v. Dor-hue, etc., R. Co. v. Lee, 60 111. 501; 75 111. 106; Toledo, etc., Ry. Co. Chicago, etc., R. Co. v. Mock, 72 V. O'Connor. 77 111. 391; Kewanoe 111. 141. V. Depew, 80 111. 119; Schmidt v. CONTRIBUTORY NEGLIGENCE AND AFSUMPTION OF RISK. 131 § 77. — Jury must compare the negligence of the defendant with that of the plaintiff. — It was for the jury to determine whether the phiintiff's negligence was slight in comparison with that of the defendant, or whether it was equal or greater. They had to compare the degrees of negligence. And it was proper to instruct the jury that if the plaintiff had been guilty of unreasonable negligence, and the defendant guilty of gross negligence, they should find for the latter.'^^ And an instruction limiting a recovery to the negligence of the defendant and freedom of the plaintiff from negligence ma- terially contributing to the injury, was erroneous ; for it kept out of view the rule of comparative negligence.''^ "The gross negligence of the defendant is as indispensable an element as the slight negligence of the deceased ; and it appearing from the evidence that there is contributive negligence on the part of the plaintiff or the deceased, it is for the jury to determine, from all the evidence, the relative degrees of the negligence of the parties, and unless they be satis- fied that of the plaintiff or deceased is slight and that of the defendant gross in comparison with each other, there can be no recovery. The onus, in establishing the relative degrees of negligence, is not thrown on the defendant. ''*' Neither party, in the first instance, is assumed to have been negligent. The negligence must be proved, and unless it appears from the proof that the plaintiff's care, under all the evidence, is proved as alleged, there can be no recovery. "®° § 78. Instructions must require comparison. — Care had to be used instructing the jury that the defendant's negli- ■^ Illinois Central R. Co. v. Mid- 79 Citing Indianaj'olis, etc., R. diesworth, 43 111. 64. Chicago, Oo. v. Evans, 88 111. 63. etc.. R. Co. V. Payne, 59 111. 534; so Chicago, etc., R. Co. v. Har- Chicago, etc., R. ' Co. v. Lee, 60 wood, 90 111. 425 ; Chicago, etc., R. 111. 501; Illinois Central R. Co. v. Co. v. Dimick, 96 111. 42; Qiicago, Cra*''>• 13.504. V. Burke, 37 Ind. App. 518; 77 "The court could not say that N. E. Rej). 409. one courae or the other was the CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 143 § 89. statute does not adopt a theory of slight, ordinary and gross negligence. — Under the Wisconsin statute the de- fendant's negligence must be greater than that of the plain- tiff's before there can be a recovery. If the negligence of both be equal, or that of the plaintiff the greater, there can be no recovery. In this respect it differs from the Federal statute ; for under that statute, as we have observed, the plaintiff may recover although his negligence contributed more to the injury than that of the defendant. In one case it was contended that the Wisconsin statute called for the application of the old and now nearly obsolete rule of slight, ordinary, and gross negligence, and that such degrees of negligence should be observed in comparing as con- tributing causes the negligence of the railroad company and that of the injured person. But the Supreme Court of the state said: *'We discover no such intent or provision in the law, nor do we claim it impracticable to have the jury judge whether the negligence of the injured person contributing to the cause of the injury is slighter or greater than that attributable to the company. Applying the statute to the case before us, we cannot accede to the defendant's claim that it would be mere speculation and guesswork for the jury to attempt to determine whether the plaintiff's contributory negligence was slighter or greater as a con- tributing cause than that of the defendant." ^^* § 90. Directing the verdict — Due care. — The statute in- troduces new rules concerning the directing of the verdict. Even the rule prevailing in Georgia cannot be followed; for as we have seen this federal statute is not complicated with 97* Zeratsky v. Chicago, M. & the jury to fini whether the plain- St. P. Ry. Co. 141 Wis. 423; 123 tiff's negligence was "less or N. W. '904. greater" instead of "slighter or Under this statute the jury is re- greater." "The word 'less' as here quired to specifically find "whether used conveyed the st.me idea to the the negligence of the party so in jury as the word 'slighter' as used jured was slighter or greater than in the statute." Boucher v. Wis- that of the company." It was lield oonsin Central Ry Co. 141 Wis. not error to submit a question to 160; 123 N. W. 913. 144 FEDERAL EMPLOYERS' LLA.BILITY ACT. Avhat are in a measure antagonistic clauses in different sec- tions. It does not require of the plaintiff the exercise of due care; and if he did not use due care, that fault of his only goes to the reduction of his damages. There are many in- stances in which courts have laid down rules applicable to them in which it has been held that the plaintiff had been guilty of contributory negligence and so could not recover. In such cases verdicts have been directed. But the sole question there before the court Avas, "Had the plaintiff been guilty of contributory negligence ? ' ' within the rules adopted by the courts in the specific instance; and if his case fell within one of those rules, he must suffer a defeat, and the court could either enter a non-suit or direct a verdict. But these instances are no longer applicable ; for the court cannot weigh the respective negligence of the parties. That is a question for the jury, and it is the jury's sole province to determine. If, however, the evidence clearly shows that the defendant was not guilty of negligence, then, of course, the court may direct the verdict for him, in which event there would be no damages to assess.'-"^^ '•'"a. The Wisconsin statute re- the employee so injured, and con- quires the court to submit to the tributing in a. greater degree ta jurj' the questions whether any such injury, then the plaintiff shall negligence attributable to the rail- be entitled to recover." In con- road defendant "di'-cctly contrib- struing this statute the Supreme uted to the injury," and, if such Court of the etate said: "Tn ad- negligence is found, "whether the ministering the statute in court person injured was guilty of any as they actuivlly arise, it devolves negligence which directly contrib- on the court to determine whether uted to the injury," and if the there is any cvideiico tending to jury then find the injured person show negligence attributable to the guilty of contributory negligence, [railroad] ocmpany, and contribu- the court shall then submit to tory negligence of the injured per- them the inquiry "whether the neg- son which proximately contributed ligencc of the party so injufred to the injury complained of. If was slighter or greater as a con- the evidence produced tends to tributing cause to tlic injury than show that the negligence of both that fif the c^jmpany." It is fur- parties to the actior. concurred to ther provided tliat "in all cases produce the injury, unless the evi- whore the jury shall find that the donee is so clear and undisputed negligence of the company * • ♦ as to permit of onl.\ one inference was greater than tlie negligence of on the question, it then becomes a CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OP RISK. 145 § 91. Court telling- jury particular acts constitute con- tributory negligence.— But because the court cannot direct the verdict, it does not follow that the court cannot inform the jury that the facts proven show the plaintiff had been guilty of contributory negligence, where the facts and in- ferences to be draAvn from them are not conflicting as to the fact that contributory negligence existed, or where courts, by reason of a long line of like repeated facts coming before them have adopted rules that as to the conduct of the plaintiff in such instances the courts will say, as a mat- ter of law. that the plaintiff, in law, had contributed to his own injuries and could not recover. Where the court, how- question for the jury to determine! whether the negligence of the in- jui-ed party was slig iter or greater jis a contributing cause to the in- jury than attributable to the com- pany. In case the evidence per- mits of only one inference it devolves on the court to decide tlie issue as a matter of law. Whether a case is one for a court or jury to determine cannot be ecUled by any general rule or classifieation of cases, but must be determined in tne light of the facts and circumstances of each partic- ular case. The question is not ascertainable by any rule of abso- lute measurement, and it therefore must be submitted to human judg- ment. Zeratskv v. Chicago, M. & 8t. P. Ey. Co. 141 Wis. 42,3; 123 X. W. 904; Boucher v. Wiscon- sin Cent. Ry. Co. 141 Wis. 160; 123 N. W. 913; Kiiey v. Chicago, M. & St. P. R Co. 138 Wis. 215; 119 X. W. 309; 120 N. W. 756. "The Act of Congress of 1-908 clearly forbids a nonsuit to be entered in any case where there is evidence of negligence on tlie part of the defendant. As under this statute the plaintiff can elect to sue in the state courts, he has natiirally chosen to bring his ac- tion imder the provision of the Federal statute. . . . All that is necessary for us to say in this case is that the plaintiff was en- gaged in interstate commerce at the time of hig injury; that there was evidence of negligence on the part of the defenilant; that the plaintiff oould elect to sue in the state court, specifying in his com- plaint, as he does, that he inA'okes the protection of the Federal stat- ute; and that under its terms the court is forbidden to direct a non- suit upon the ground that there is evidence of contributory negli- gence shoAvn by the plaintiff's testi- mony, because the statute provides that, though the plaintiff may have been guilty of contributory negli- gence, it shall not bar a recovery. In directing a nonsuit, therefore the judge was guilty of error." Horton v. Seaboard Air Line Ry. Co. (X. C.) 72 S. E. -958. It would be otherwise if the facts did not bring the plaintiff within the term.s of the statute. Zachary v. North Carolina R. Co. (N. C.) 72 S. E. S5S. 146 FEDERAL EMPLOYERS' LIABILITY ACT. ever, has said this to the jury — not that the plaintiff could not recover, but that he had been guilty of contributory negligence — it can go no further; for then it becomes the duty of the jury to weigh and determine the relative faults of the party and award or withhold damages accordingly. § 92. Rules of contributory negligence must be consid- ered. — The well known rule concerning what is and what is not contributory negligence must be considered, and the law applicable thereto constantly be borne in mind. They cannot be ignored. The statute in no way modifies them, except in the proviso when the defendant has violated a statute "enacted for the safety of employe." If the injury was inflicted by the failure of the defendant to comply with such a statute, then he cannot be held to have been guilty of con- tributory negligence. § 93. Injury occasioned by defendant having violated a safety device statute. — The section quoted at the beginning of this cha])ter expressly provides, "That no employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such em- ploye." A subsequent section of this statute provides that the employe cannot be held to have assumed the risk where he is injured or killed by the violation by the defendant of any statute enacted for the safety of employes contributive to such injury or death. § 94. Presenting the defense of contributory negligence — Burden. — This Federal statute lias not changed the rule wilh reference to the presentation of contributory negligence as a defense, except it is now only a partial defense. In the federal courts the burden of presenting contributory negligence of the plaintiff as a defense has always been upon CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OP RISK. 147 the defendant,"^ and this burden still continues in a suit brought under this statute. But where the action is brought in the state court then the practice peculiar to that state need not necessarily prevail, unless the burden to show con- tributory negligence, before the enactment of this statute, has prevailed ; for, while the plaintiff must prove the extent of his injuries and practically the amount of his damages, or furnish a basis from which the jury (or court if trying the case without a jury) can estimate or compute such amount, it does not follow that he must first prove that amount and then show to what extent they have been lessened by his own contributory negligence. Therefore, when he has proven his injury and its extent and other attendant facts, thus show- ing a basis from which the jury can estimate his damages, if the defendant desires to reduce them by showing plain- tiff's contributory negligence he has the burden to do so. It necessarily results that if the action is brought in a state court, the burden is upon the defendant to show plaintiff's contributory negligence, if he desires to reduce what the amount of the damages would otherwise be; and that the rule of a state practice casting a burden upon the plaintiff to show his freedom from fault before he can recover, has "^ Railroad Co. v. Gladmon, 15 damages, for instance, injured Wall. 401; 21 L. Ed. 114; In- several other persons who recover dianapolis, etc., E. Co. v. Horst, damages from the employer. Ckn 93 U. tt. 201; 23 L. Ed. 898; the latter, when sued by his em- Hough V. Railway Co. 100 U. S. ployee, by counter claim (in those 213; 25 L. Ed. 612, reversing Fed. states allowing a counter claim Cas. No. 6,221 ; Crew v. St. Louis, in actions to recover damages oc- etc, R. Co. 20 Fed. Rep. 87; Hull casioned by negligence) reduce the V. Richmond, 2 Woodb. & M. 337; damages or defeat his action by Dunmead v. American, etc., Co. 4 setting up the damages his con- McCrary, 244; Dillon v. Union tributory negligence has occa- Pacific R. Co. 3 Dill. 325; Morgan sioned? It is thought not; be- V. Bridge Co. 5 Dill. 96; Secord v. cause the statute does not give St. Paul, etc., R. Co. 5 McCrary, the employer a cause of action 515; Wabash, etc., R. Co. v. Cen- where liis act contributed to the tury Trust Co. 32 Alb. L. Jr. 96. injury, which would be the case Suppose the contributory act of if the counter claim be sustained, the employee caused the employer 148 FEDERAL EMPLOYERS' LIABILITY ACT. necessarily been changed and does not apply when the action is based upon the Federal Employers' Liability Act.**^ § 95. When contributory negligence does not di- minish damages. The proviso to section three provides that if the injury or death of the employe was occasioned by the violation by the common carrier of any statute en- acted for the safety of employes, or rather if the violation contributed to it, the employe shall not "be held to have been guilty of contributory negligence" in such case. TVhen such a case is presented the factor of the employer's con- tributory negligence is not to be considered in order to reduce his damages. The statute absolutely prohibits it. But, of course, the violation of the statute must have been the proximate cause of the injury, else the employee would not be guilty of negligence at all: and if the employe's act was the proximate cause of the injury, irrespective of the violation of the statute, then he cannot recover; because the employer has been guilty of no actionable negligence. So, in instances of a violation of a (Federal) statute, re- sulting in an injury to the employe, where section four pro- vides it shall not be considered that the employe assumed the risk, the damages cannot be diminished by reason of his negligence contributing to the result. But in all such in- stances the violation of the statute must have caused or pro- duced the injurj^ — must have been the proximate cause of it. § 96. Examples under Wisconsin statute. — Under the "Wisconsin statute if the negligence of the plaintiff is "slighter" than that of the defendant railroad company he may recover; if their joint negligence be even he may not. 99 In Wisconsin the rule was slighter than that of the defend- that the defendant had the burden ant, did not change the rule con- to show that the plaintiff had been cerning kind of contributory negli- sruilty of contributory negligence, gence that had theretofore existed. in order to defeat the action-, and Zeratsky v. Chicago. M. & St. P. it was held that the statute of Ey. Co. 141 Wis. 423; 123 N. W. 1?>07. allowing a recovery where 904. the plaintiff's negligence was CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 149 In a case arising under this statute the facts were substan- tially as follows: The plaintiff was the rear brakeman on the defendant's extra freight train, consisting of fifty-four ears, caboose and an engine, which left Green Bay of that state at 10:10 p. m. bound for Milwaukee. It had a full crew of trainmen, consisting of the engineer, fireman, con- ductor and two brakemen. The train proceeded south through De Pere at 11 :05 p. m., and through Ackerton, and, when about one and one-fourth miles from Hilbert Junction, the engine ran out of water, and was unable to pull the train to Hilbert Junction. ''The plaintiff was in the caboose when the train stopped. The engineer, fireman, conductor, and the other brakeman, without informing plaintiff of their intention, cut the engine from the train, and pro- ceeded with it to Hilbert Junction to get a supply of water without giving a signal to the plaintiff, as required by the following rule of the company: 'Rule 26. The one long, two short, and one long blast of the whistle thus, , — , — , , will be given by engineers when they find it necessary to stop between stations and to notify con- ductor, thus enabling him to drop off and send back a flagman.' As soon as plaintiff observed that the train had stopped, he left the caboose, and went forward to about the middle of the train to ascertain the cause of the stopping. He there observed that the engine had been cut off, and had left with the rest of the crew, and he then started back. The plaintiff stated that, while going forward and coming back, he observed the odor of a hot box, and he tapped the boxes to find the one, and immediately upon his return he went into the caboose to get his dope bucket to fix it. He testified that he took no more time than was necessary to m.ake this trip. 'Special rules for train and engine men' of the defendant contains the following: 'Rule B4. Conductors and brakeman must examine their trains, when- ever there is an opportunity to do so, looking particularly for hot boxes and defective draft and brake rigging.' Meanwhile the defendant's regular passenger train bound 150 FEDERAL EMPLOYERS LIABILITY ACT. for Milwaukee on the same line as that on whieli the freight was proceeding had arrived at Green Bay at about 12:30 a. m., and had left a few minutes later. At De Pere it was permitted to enter the block which was occupied by the freight train. One of the rules of the defendant was as follows: 'Rule 3. Trains must not pass a block signal at danger except under authority of a clearance card form 168.' The conductor and engineer were given permissive and clearance cards under the following rules, which train- men are supposed to know and obey : 'Rule 4. AVhen the block signal stands at danger, the operator issues a clearance card which states that he has no orders or no further orders for the train named. The train receiving clearance card may proceed if its time table rates or special orders permit it to do so.' 'Rule 5. The permissive card is used when trains are permitted to pass a block signal at danger and enter the section under notice that the preceding train has cleared the same section. This is to be used only by direction of the train dispatcher.' 'Rule 6. When a train is to proceed under a permissive card, the conductor and engineer must each have a card of the following form properly filled out and signed by the train dispatcher.' ' Rule 10. Trains running under the authority of a per- missive card or caution signal must run with great care and at reduced speed to ensure against collisions with trains ahead.' A special caution order was issued to the conductor and engineer in these words: 'Extra east, Dietzler conductor, left De Pere at 11 :42 p. m. and has not yet arrived at Hil- bert Junction. Proceed cautiously, expecting to find them on main line at any point without flag protection.' The passenger proceeded south — or east as it is called in railroad parlance — and, when running at a speed of about thirty miles per hour, collided with the rear end of the freight train which had stopped on the main track a mile and one- CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OP RISK. 151 quarter from Hilbert Junction. The freight train crew had not been specifically informed that the passenger train had been permitted to enter the same block or section of track as was occupied by the freight train. The plaintiff, who was in the caboose of the freight train, was seriously injured by the collision. The fireman of the passenger train was killed, and the engineer was injured. There was a straight and unobstructed stretch of track back of the caboose of three thousand feet. Whether or not the red lights were burning on the caboose was a disputed question on the trial. The following rules of the defendant regarding the opera- tion of trains were in force at the time of the collision : 'Rule 62. When a train stops between stations, a flag- man must immediately go back with proper signals to stop any trains that may be following. Not a moment must be lost in inquiry as to the cause of stoppage or its probable duration. The flagman must go back instantly and shall take not less than three torpedoes, also a red flag by day and a red and white light by night, and shall place one torpedo on the rail on the engineer's side when three-fourths of a mile (23 telegraph poles) distant from the rear of train, and at a further distance of one-fourth mile (eight telegraph poles), he shall place two torpedoes on the rail on the engineer's side. He will then, selecting a place where the view is long and clear, remain until the train is stopped or he is recalled. Returning he will leave two torpedoes at the most distant point from his train and take up the rest. Whenever it becomes necessary, the forward end of the train shall be protected in the same manner.' 'Rule 50. Train and engine men will be held equally responsible for violation of any of the rules governing the safety of trains, and they must take every precaution for the protection of trains, even if not provided for by the rule. ' 'Rule 26. Conductors will be held responsible for the faithful performance of the duty required on the part of their brakemen.' 152 FEDERAL EMPLOYERS LIABILITY ACT. 'Rule A58. Trains moving under permissive card will be held responsible for an accident in the nature of colliding with the train occupying the section which required move- ment under the permissive card. Engineers will not be censured for moving at a speed to insure against accident.' The defendant alleges that the collision was caused by the failure of the passenger engineer to observe its train orders and the rules and regulations kno\ATi to him, to- gether with the contributory negligence of the plaintift and his violation of the defendant's rules and regulations." At the close of the testimony, the court, on defendant's motion, directed a verdict for the defendant, and judgment was rendered upon the verdict so rendered. This was held error, on the ground that the facts presented a case for the jury to determine whether the negligence of the plaintiff was not "slighter" than that of the defendant. The statute required the jury to find if the negligence of the defendant "directly contributed to the injury;" and the court con- strued this to merely mean negligence proximately con- tributing to the injury, and that the use of the word "directly" did not operate to modify the law of proximate cause in the law of negligence. "It is alleged," said the court in passing on the evidence, "that the plaintiff was guilty of negligence in omitting to perform his duty as brakeman on the occasion in question, in that he failed to protect the rear of the freight train from the passenger train, and that this failure of duty by him was a proximate cause of the collision and his injuries. The contention is that, but for plaintiff's contributory negligence, the injury would not have been received ; and hence that the negli- gence of the i:)laintiff in its most favorable aspect under the law is equal to the negligence attributable to the defendant as a contributing cause to the injnry. In the solution of this question all of the inferences from the evidential facts most favorable in support of the plaintiff's alleged cause of action must be assumed to be the view of the case which may be taken by the jury. The contention that plaintiff's CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 153 duty did not require him to flag the train under rule 62, unless directed so to do by the train conductor or by a signal from the engineer by a blast from the whistle, cannot be sustained. The rule is clear in its provision that, when a train stops between stations, a flagman must go back to stop any train that may be following, give the prescribed signals to it, and remain at the place to which he has gone until the train stops or he is recalled. This duty is further enjoined by rule 50, which informs persons engaged in the train service that: 'Train and engine men will be held equally responsible for a violation of any of the rules gov- erning the safety of trains, and they must take every pre- caution for the protection of trains even if not provided for by the rules.' We find no support for plaintiff's claim that the duty imposed by these regulations was disregarded in practice to such an extent as to abrogate them. Nor is it shown that the plaintiff was informed while in de- fendant's service that these rules and the duties imposed thereby were not obligatory on him. We think that the plaintiff as rear brakeman of this train was required to perform whatever duty these rules imposed on him. "The evidence tends to show that the plaintiff was the rear brakeman on a freight train which came to a stop on the main track between stations. He had not been informed by the engineer's signal that the train was to make a stop. So far as he then knew, the train might be stopped only momentarily. In the operation of trains, stops of a mo- mentary character must inevitably occur, and on such occasions it would be both unnecessary and impracticable for the rear brakeman to leave the train at once to signal a train that might be following. It is obvious that, if the brakeman should immediately so leave his train on all such occasions, he would on many occasions be wholly separated from his train. He testifies that he went forward to a point where he observed that the engine had been detached from the train and had departed for Hilbert Junction ; that then he crossed over to the other side of the train; that he 154 FEDERAL EMPLOYERS' LL\BILITY ACT. observed the odor of a hot box, and that he attempted to locate it while he was returning to the caboose ; that he took no more time than it naturally takes to make such a trip ; that he returned to the caboose without intending to go and signal the coming passenger train; that he at once looked for the dope bucket in the caboose to fix the hot box ; and that the collision occurred immediately. It is argued that this amounts to a violation of his duty under the rules and establishes his contributory negligence. Upon learning that the engine had departed for Hilbert Junction, it became the duty of the plaintiff to procure the means and to go back to signal a coming train, and in omitting so to do he was guilty of not exercising that care which the situation and the exigencies of the case demanded, but it is not so clear that it can be held as matter of law in what degree it contributed to produce the injury. The contention that it amounted to the very highest degree of negligence be- cause the accident would not have happened but for the violation of defendant's rules seems necessarily to assume that the plaintiff in making this trip to ascertain whether the train was to stop more than momentarily, and in not instantly, upon the stopping of the freight train, taking steps to signal the coming passenger train, was guilty of such a high degree of negligence as to preclude his recovery. He testifies that he consumed from fifteen to twenty-five min- utes on his trip ; that he relied on the red light signals dis- played on the rear of the caboose to signal the coming passenger train ; that he went to the caboose for the dope bucket to fix the hot box, and while in this act the collision occurred. It is not clear from the record that, if on his return to the caboose he had immediately proceeded to procure his lantern and torpedoes to signal the coming train, he would have prevented the collision. The degree of negligence involved in these acts is not so clear that it can be determined as a matter of law. Under the circum- stances, it is a mixed question of law and fact which must be resolved by the jury. CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OP RISK. 155 "The ease also demands of tlie jury that they determine in what degree the negligence attributable to the company contributed to produce the injury. Among the matters bearing on this question it is alleged that the train dis- patcher was derelict in his duty in permitting the pas- senger train to enter the block as he did ; that the engineer of the passenger train omitted to obey special and express orders in running his train on the block ; and that the con- ductor and the engineer of the freight train were negligent in not signaling or warning this brakeman of the stop, and in failing to ascertain before stopping that the plaintiff as rear brakeman was on duty or capable of protecting the rear of the train. In passing on the question of whether or not the company's negligence caused plaintiff's injuries in greater degree than that of the plaintiff, all of these facts relating to the omission of duty on the part of these servants who occupied positions of great responsibility in the conduct of the defendant's business must be viewed in comparison with the acts of the plaintiff in the light of their respective duties and their responsibility to exercise a degree of care commensurate to the exigencies of the situation. The case is not so plain and clear that but one inference can reason- ably be drawn from the evidence as to the questions, and they therefore should have been submitted to the jury for determination. ' ' ^*'° Another case may be taken from the Wisconsin Supreme Court decision that will serve to illus- trate the application of the statute of that state and inci- dentally throw light upon the construction of the Federal statute. The following is the statement of the case as made by the court with so much of the opinion of the court as passes upon the question of the contributory negligence of the plaintiff: "At North Fond du Lac the defendant had an arrange- ment for handling cinders. The arrangement is the only one looZeratsky v. Chicago M. & St. P. Ry. Co. 141 Wis. 423; 123 N. W. 904. 156 FEDERAL EMPLOYERS* LTABILITT ACT. of its kind operated by the defendant. Under one of the defendant's tracks is what is known as the 'cinder pit.' On the bottom of the cinder pit, which lies nine or ten feet below the track, are two sets of parallel tracks running east and west. At the north and south of the tracks in the pit are abutments. The east end of the pit is closed. The pit is reached by a curved inclined track about 300 feet long. There is room in the cinder pit for two gondola cars. When the two cars are in the pit, they came very close to- gether, and are very close to the abutments. In using the pit the cars are at first run partly in, being blocked so that the half farthest in is under the track above. Locomotives on the track above are stopped over the cars in the pit, and the ashes and cinders which are dumped therefrom fall between the rails into the cars below. "When the cars are half filled, the block is removed from the wheels, and the cars are allowed to slide dov/n the incline so as to permit the filling of the other half. Owing to the curve and the incline of the track leading into the pit, a chain coupling is used between the cars and the engine when cars are placed in the pit. "The plaintiff's intestate had been employed by the de- fendant for about nine months as a brakeman. On August 4, 1908, the deceased was assigned to assist, under the switch foreman, at the task of removing the filled cars and of placing empty ones therein. The two loaded cars were removed by the foreman of the regular switch crew "with the aid of an engine crew, who had not performed this work before, and an empty car had been placed on the north track. The deceased had meanwhile tended a switch. "When the second car was being placed, the deceased as- sisted and did the uncoupling of the engine from the car. The engine had rim the empty car too far into the pit, and it was necessary to back out. "When the car was in proper position, it was blocked there by Loucks, the foreman of the regular switch crew, who then stepped back to the north of the car, so that he was about 10 feet from the deceased. CONTRIBUTORY NEGLIGENCE AlW ASSUMPTION OF RISK, 157 The engine was still attached to the empty car by the chain coupling, and it was necessary for the engine to move a little toward the car, so that the pin holding the chain could be pulled out and the engine uncoupled from the car. The space between the drawbars of the ear and the engine was about two feet. The deceased stepped from the north be- tween the engine and the car to draw the pin, and was then on that side of the drawbars. He gave by word and sign the signal for 'slack the pin.' The foreman communicated the signal to the fireman, by whom it was, in turn, com- municated to the engineer. Thereupon the engineer re- leased the brake on the engine and it slowly started toward the car. Loueks, the foreman of the switch crew, was the only person v/ho was observing the deceased. He testified that the deceased, whose back was toward him, pulled the pin; that the chain dropped from the car; that just after the deceased pulled the pin he m.oved forward between the drawbars of the car and the engine ; and that, as he stepped forward, he turned his face toward the engine, and was immediately caught between the drawbars. The engine moved forward, and the deceased was caught and injured and crushed between the drawbars of the car and of the engine. He died almost instantly. Besides the injury to the part of the body caught between the drawbars, the thumb of the right hand of the deceased was injured. The jury found that the negligence of the engineer in slacking the pin was the proximate cause of the death of the de- ceased, and that it was greater as a contributing cause to his death than the negligence of Boucher himself. They also assessed the damages." ''The appellant," said the court, "assails the court's de- cision holding that the evidence in the case required sub- mission of the issues whether the engineer was negligent in conducting the defendant's business at the time Boucher was injured ; if so negligent, whether it was the proximate cause of the injury, and whether such negligence was a greater or less contributing cause in producing Boucher's 158 FEDERAL EMPLOYERS LL4.BILITY ACT. death than his contributory negligence. The facts of the case controlling these questions are within a narrow com- pass, and are so interrelated that a reference to them will suffice for the consideration of all the questions presented by these contentions. The foregoing statement of them makes clear what were the duties assigned Boucher and the engineer in conducting the defendant's business at the time of the accident. It is argued that the facts wholly fail to show that the engineer was negligent in managing the engine for the purpose of slacking the coupling chain when signaled so to do by Boucher, and that the accident was wholly due to the fact that the decedent deliberately and negligently stepped into a place of obvious and immi- nent danger. It is undisputed that the car had been shoved into the cinder pit ; that it had been blocked ; that the engine had come to a stop ; that the chain forming the coupling between the ear and the engine was taut so that the coupling pin could not be released without slacking; that the decedent was required in the performance of his duty to step between the car and the engine to do the uncoupling; that it devolved on him to give the signal for slacking the coupling chain to enable him to pull the coupling pin; and that it was the duty of the engineer to move the engine for this purpose when the signal therefor was communicated to him. There is no dispute but that the signal to this effect was communicated to the engineer for this purpose. The switch foreman testifies that the decedent gave the signal for the 'slack of the pin,' and that he communicated it to the fireman. The fireman testifies that he communicated it to the engineer, and that he there- upon moved the engine forward. The engineer testifies that he received the signal 'to slack ahead,' which implied that he was to proceed until signaled to stop. He states that his recollection of the signal is uncertain. He also testifies that he was fully informed that the car had been blocked, that the engine was required to move forward only a few inches to slack the chain in order to loosen the coupling CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 159 pin ; that a movement of a few inches would suffice and was the only movement toward the car required of the engine; that the last act before moving the engine away from the ear was the uncoupling; and that he fully understood all the facts and conditions of the service in which they were then engaged. The court submitted to the jury the ques- tion of whether the engineer under the circumstances was negligence in the management of the engine which resulted in a forward movement of several feet and in contact with the car. "The point is made that the engineer had a right to move the engine as he did in response to the signal given him. There is dispute, however, as to what signal he re- ceived. The jury evidently found that he received the sig- nal to slack the pin, and that this called on him to move the engine only a few inches. There is evidence of other employees of the defendant in support of this view. Further- more, the engineer was fully informed of the whole situa- tion and the conditions under which he was acting and knew that he was required to move the engine no more than was necessary to slack the pin. In fact, he moved the engine several feet, and thereby brought about the contact between the engine and the car whereby Boucher was in- jured. It is evident that the movement of three or four inches of the engine could have been made readily. "However, it is claimed that the engineer had no reason to anticipate that an injury would result from the movement made by the engine. The situation apprised him that Boucher was then between the car and the engine for the purpose of pulling the coupling pin, and that such a move- ment as was made must result in a collision with the blocked car in the cinder pit. Surely such a movement of the engine was fraught with danger to the decedent, who was in a proper position to perform his service, and the engineer had a reasonable basis for anticipating that an injury might result from such management of the engine. "We are led to the conclusion that the facts and circumstances of the 160 PEDERALi employers' LIABILITY ACT. case required that the question of the engineer's negligence in the management of the engine should be submitted to the jury as was done in the first question of the special ver- dict. The court informed the jury that this question in- cluded the inquiry as to whether the engineer was negligent in moving the engine forward to remove the strain from the coupling chain, and thus to free the coupling pin so that it could be pulled. The instructions in this respect fully informed the jury of the scope of this issue, and of what it embraced. The court in calling the jurors' attention to the evidence on this subject did not restrict the jury to the portion he alluded to, but instructed them to take into con- sideration all the evidence bearing on the inquiry so sub- mitted to them. The instructions so given were free from undue restrictions on the jury in their deliberations, and in no way misled them. "It is contended that the court erred in refusing to in- struct the jury to the effect that, if the engineer was found guilty of negligence, it was not the proximate cause of Boucher 's death, and that his death was proximately caused by his contributory negligence. The court found as matter of law that the decedent was guilty of contributory neg- ligence. The argument is made that the engineer had a right to rely on the fact that Boucher under no circum- stances would occupy a place wherein he might be caught between the drawbars of the car and the moving engine and thus meet certain death, unless he deliberately placed himself in this obviously and imminently dangerous posi- tion. Is this a legitimate deduction from the facts and cir- cumstances of the case? We do not so regard it. Boucher's conduct must be considered in the light of the situation as disclosed by the facts and circumstances under which he performed his duties. It is clear that he took a position between the car and the engine where he could readily grasp and pull the coupling pin from the coupling device of the car, and that he pulled the pin and thereby caused the chain to drop. The jury from the evidence must have CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OP RISK. 161 found that in giving the signal to 'slack the pin' he called for a forward movement of the engine of but a few inches. In his position between the car and the engine his back was turned toward the engine, and there was sufficient space for him to pass between the drawbars of the car and the engine. Having given the signal to the engineer to come forward with the engine sufficiently to slack the pin, he, in the exercise of reasonable care, might well anticipate that the engine would move no farther than required for this purpose. While he cannot be deemed free from blame in not looking to see if the engine was approaching, it does not appear but that he may have taken the step to complete his duties, and that in the ordinary course of discharging his duties he got into this space through very slight inad- vertence, or that the physical condition of the track may have caused him to take this step. All this refutes the as- sumption that he deliberately placed himself in a place imminently dangerous to his life. From the situation thus presented, it cannot be said that the duty to protect him- self against the hazards incident to the engineer's conduct rested solely on Boucher, and that the engineer was free from legal responsibility as to the result. From the very nature of the situation and corresponding duties of the two men to guard Boucher against injury it may be said that the negligence of the engineer was of a graver and weightier character as a contributing cause to Boucher's death than that of the decedent. After careful examination of the evidence and much reflection, we have become persuaded that the facts of the ease are not so clear upon the issue of the engineer's negligence and its proximate contribution toward causing Boucher's death and upon the question of whether the decedent's contributory negligence was slighter or greater than that attributable to the defendant as to require determination of them by the court as matter of law. The court properly submitted them to the jury. "It is strenuously argued that the jury cannot deter- mine from the evidence whether Boucher 's death was caused 162 FEDERAL EMPLOYERS' LLiBILITY ACT. in greater part by the negligence of the defendant as com- pared with his contributory negligence, and hence that the plaintiff has failed to establish her cause of action. In support of this claim, the contention is made that the burden is on the plaintiff to establish a cause of action, and that the evidence fails to show any grounds justifying Boucher's stepping between the drawbars, and he must therefore be held to have taken this step knowing it meant certain death. The facts and circumstances of this situation already adverted to we think negative this claim, and show that the jury could have found that he entered this space through slight inadvertence, and that the conduct of the engineer in comparison therewith may be considered a weightier and graver default."^" In another case it appeared that the deceased was a sec- tion foreman. At seven o'clock in the morning he started out on a handcar. It was a very dark and foggy morning. When the ear had run about four thousand feet, it was run into and he was killed by a locomotive and caboose. The locomotive and caboose was running as an irregular train, ahead of a passenger train; and the deceased had notice of it before he started. This train was running at the usual speed without the headlight being lighted, it having been extinguished, but the engineer was not aware of that fact and it was not possible to tell from his position on the locomotive at the time whether it was burning or not. The engineer failed to sound his whistle at the first crossing west of the station or at the mile post. It was held that the engineer's negligence was not gross, as com- pared to that of the decedent, so as to entitle the plaintiff to recover, notwithstanding the decedent's contributory negligence, under the provisions of the statute. It was held that there was no evidence from which a court or jury could say that the negligence of the decedent was slighter than that of the engineer.^°^ 101 Boucher v. Wisconsin Central 102 Dohr v. Wisconsin Central Ry. Co. 141 Wis. 160; 123 N. W. Ry. Go. 144 Wis. 545; 129 N. W. 9 is. 252. A different result was CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK. 163 § 97. Practice under Wisconsin statute. — Under the Wis- consin statute it is proper to cover the question of the negligence of the defendant and the contributory negligence of the plaintiff by one or more appropriate questions sub- mitted to the jury, each involving a singular issuable idea according to the circumstances, in accordance with the prac- tice under the special verdict law, for the reason that the answer of "Yes" or "No" would often not inform the court with reasonable certainty of a unanimous agreement upon either of the several ideas distinctively joined by the statute. The better practice is to use the words "want of ordinary care" rather than the word "negligence" in sub- mitting the questions to the jury; and the words "proxi- mately contributing" should be used instead of the words "directly contributing," since that is the construction given by the Supreme Court to the last two words. The submis- sion of the questions to the jury whether the company or any ofScer other than the person injured was guilty of a want of ordinary care, and if that be true, whether the person injured was guilty of ordinary care, should only be made in so far as they are warranted by the evidence. The set phrase whether the fault of the injured party "was greater or slighter as a contributing cause" should not be used, but only whether the fault of the defendant was the greater, in order to administer the statute in its spirit.^"^ reached on the facts in Clary v. 103 Jensen v. Wisconsin Central Chicago, M. & St. P. Ry. Oo. 141 Ry. Cb. 145 Wis. 326; 128 N. W. Wis. 411; 123 N. W. 649. 982. CHAPTER VI. DEATH BY WRONGFUL ACT. SECTION SECl 98. Statute. 113. Of). No action at common law. 100. Constitutionality of statute 114. allowing recovery for ben- 115. eficiaries. 101. Deceased without right of re- 116. covery. 117. 102. Failure of deceased to bring action. 118. 103. Instantaneous death. 104. Survival of injured employe's 119. cause of action. 120. 105. Beneficiaries on death of in- 121. jured employee. 122. 106. iSTo husband or widow sur- vi\'ing. 123. 107. Next of kin dependent upon 124. employee. 125. 108. Who are dependent on de- ceased. 126. 109. Bastard. 127. 110. Emancipated child. 128. 111. Adopted child. 112. Posthumous child. 129. Beneficiary must survive de- ceased — 'Com pi a int. Statute of limitations. Who brings the action in case of death. Complaint. Damages by way of solatium. Damages for suffering of de- ceased) — Medical and fune- ral expenses. Measure of damages. Use of annuity tables. Interest. Damages not part of estate. Judgment recovered by de- ceased. Costs. Suit by poor person. Distribution of amount re- covered. Death of beneficiary. Distribution of amount re- covered. Right of widow to sue under state statute. § 98. Statute.— The statute provides that a common car- rier by railroad while engaging in certain commerce, "shall be liable in damages to any person suffering injury while he is employed in such commerce, or, in ease of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carriers," etc. Under the statute pnly the 164 DEATH BY WRONGFUL ACT. 165 administrator (and perhaps the executor) can bring the suit.^ The general administrator may bring the action, a special one is not necessary." § 99. No action at common law.— The maxim actio per- sonalis moritur cum persona applied to actions at common law for the death of a person; and this is true whether the death was instantaneous or not as a result of the injury.^ Therefore, if a right to recover exists, it must be given by a statute/ A statute giving a right of action in force at the place of the injury applies to a suit in admiralty,^ § 100. Constitutionality of statute allowing recovery for beneficiaries. — It is no longer an open question that a stat- 1 Cleveland, etc., R. Co. v. Os- born, 3U Ind. App. 34; 73 N. E. Rep. 285; Dillier v. Cleveland, etc., R. Co. 34 Ind. App. 52; 72 N. E. Rep. 271; Lake Erie, etc., R. Co. V. Charmer, 161 Ind. 95; 67 N. E. Rep. 623; Cleveland, etc., R. Co. V. Osgood, 36 Ind. App. 34; 73 N. E. Rep. 285. 2 Lake Erie, etc., R. Co. v. Cliarmer, supra; Cleveland, etc., R. Co. V. Osgood, supra. 3 Higgins v. Yelverton, Yelv. 89 ; Baker V. Bolton, 1 Campb. 493; Osborn v. Gillett, L. R. S Exch. 88: 42 L. J. Exch. 53; 28 L. T. (N. S.) 197; 21 W. R. 409; Carey V. Berkshire R. Oo. 1 Cush. 475; adjudged cases forbids that nonres- Eclen V. Lexington, etc., R. Co. 14 B. Mon. 165; Hyatt v. Adams, 16 Midi. ISO; Grosso v. Delaware, etc., R. Co. 50 N. J. L. 317; 13 Atl. Rep. 233 ; Lyons v. Woodward, 49 Me. 29; Wyatt v. Williams, 43 N. H. 102; Kramer v. Market St. Ry. Co. 25 Cal. 434; Little Rock, etc., Ry. Oo. v. Barker, 33 Ark. 350: Edgar v. Costello, 14 S. 0. 20; Natchez etc., R. Co. v. Cook, 63 Mliss. 38; Scheffler v. Minneap- olis, etc., R. Co. 32 Minn. 125; 19 N. W. Rep. 6156; Sherman v. Johnson, 58 Vt. 40; 2 Atl. Rep. 707 ; Thomas v. Union Pac. Ry. Co. 1 Utah, 132; Sullivan v. Union Pac. Ry. Co. 2 Fed. Rep. 447; 1 MeCrary, 301; Whitford v. Pana- ma R. Co. 23 N. Y. 405; Hubgli V. New Orleans, etc., R. Co. 6 La. Ann. 495; Herman v. New Orleans, etc., R. Co. 11 La. Ann. 5; Con- necticut, etc., Co. V. New York, etc., R. Oo. 25 Conn. 265; Insur- ance Oo. V. Brame, 95 U. S. 754; 24 L. Ed. 580; The Harrisburg. 119 U. S. 190; 7 Sup. Ct. Rep. 140; 30 L. Ed. 358; reversing 15 Fed. Rep. 610; In re La Bui'gogne, 117 Fed. Rep. 261. 4 Louisville, etc., R. Oo. v. Jonesi, 45 Fla. 407; 34 ,So. Rep. 246; Peers v. Nevada, etc., Co. 119 Fed. Rep. 400; Fithian v. St. Louis & S. F. Ry. Co. 168 Fed, 842; Duke V. St. Louis & S. F. Ry. Co. 172 Fed. 684 ; Dillon v. Great Northern Ry. Oo. 38 Mont. 485; 100 Pac. 960. 5 Lindstron v. International, etc., Co. 117 Fed. Rep. 170; The North- em Queen, 117 Fed. Rep. 906. 166 FEDERAL EMPLOYERS' LIABILITY ACT. ute allowing a recovery for the benefit of those dependent upon the deceased is constitutional. The validity of such a statute has been firnilj^ established.*' This is true although the statute only applies to railroad companies.'' Once the cause of action has accrued in favor of a beneficiary, a sub- sequent statute cannot change the beneficiary,* or repeal the right to the action.^ § 101. Deceased without right to recover. — The bene- ficiaries only receive their right to recover damages through the right of the deceased to recover damages if he had brought the suit. If he could not successfully maintain an action for his injuries, his administrator cannot maintain one successfully for their benefit.^" § 102. Failure of deceased to bring action. — The failure of the deceased to bring suit for his injuries, though he had ample time to do so, is no defense.^ ^ § 103. Instantaneous death. — The statute expressly pro- vides for an action in favor of the beneficiaries in case of 6 Boston, etc., R. €o. v. State, R. Co. v. Tindall, 13 Ind. 366; 32 X. H. 215; Louisville, etc., R. Hecht v. Ohio, etc., R. Co, 132 Co. V. Louisv-ille, etc., Co. (Ky.) Ind. 507; 32 N". E. Rep. 302; 17 S. W. Rep. 567; CaiTOll v. Louisville, etc., R. Co. v. Thomp- Missouri Pax;. Rv. Co. 88 Mo. 239; son, 107 Ind. 442; 8 N. E. Rep. Shorlwk V. Ailing, 93 U. S. 99; 18; 9 N. E. Rep. 357; Pittsburg, 23 L. Ed. 819; affinning 44 Ind. etc., R. Co. v. Hosea, 152 Ind. 412: 184; Southwesrtern, etc. R. Co. v. 53 X. E. Rep. 419; Kaufman v. Paulk, 24 Ga. 536; Bond v. Seer- Cleveland, etc., R. Co. 144 Ind. ace, 2 Duv. 576. So the Federal 456; 43 N. E. Rep. 446; Penn- statute is valid. Zikos v. Oregon svlvania etc., R. Co. v. Mevers, R. & N. Co. 179 Fed. 893. 136 Ind. 242; 36 N. E. Rep."^32; 7 Boston, etc., R. Co. v. State, Madison, etc., R. Co. v. Baoon, 6 supra. Ind. 205; Neilson v. BrowTi, 13 8 Chicago, etc., R. Co. v. Poimds R. I. 651; Martin v. Wallace, 40 11 Lea (Tenn.) 130. Ga. 52; Wallace v. Connor, 38 9 Denver, etc., R. Co. v. Wood- Ga. 199; Pym v. Great, etc., Ry. ■ward, 4 Colo. 162; Lundin v. Kan- Co. 2 B. & S. 759. sas Pac. Ry. Co. 4 Colo. 433. n IMalott v. Shimer, 153 Ind. 10 Evansville, etc., R. Co. V. Low- 35; 54 N. E. Rep. 101. dermilk, 15 Ind. 120; Ohio, etc. DEATH BY WRONGFUL ACT. 167 death of the injured persons ; and this applies to an instan- taneous death/- §104. Survival of injured employee's cause of action. — Before the amendment of 1910 the cause of action given the injured employee did not survive his death, but died with him.^^^ Consequently if the injured person died after bring- ing suit to recover damages for his injuries, his personal representative could not be substituted and prosecute the suit for the benefit of the heirs or widow of the deceased ; ^-^ but he must bring a new action for that purpose. But Congress remedied this defect by amending section nine of the act so as to read as follows: "That any right of action given by this Act to a person suffering injury shall survive to his or her personal representatives, for the benefit of the surviving widow and children of such em- ployee, and, if none, then of such employee's parents, and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury." The cause of action mentioned in this sec- tion as amended, is the right to maintain a suit to recover damages given by the statute to the injured employee, and is not the cause of action given the widow and children, and the other persons named, to recover damages for their '2 Brown v. Buffalo, etc., R. Co. 5 Baxt. (Tenn.) 663; Haley v. 22 N. Y. 191; Reed v. Northeast- Mobile, etc.. R. Co. 7 Baxt. ern R. Co. 37 S. C. 42; 16 iJ. E. (Tenn.) 239-. Kansas City, etc., Rep. 289; Roach v. Imperial Min- R. Co. v. Dancherty, 88 Tenn. ing Co. 7 Fed. Rep. 698; 7. Sawy. 721; 13 S. W. Rep. 698; Van Am- 224; International, etc., R. Co. v. burg v. Vicksburg, etc., R. Co. 37 Kindred, 57 Tex. 491; Murphy v. La. Ann. 651; Hamilton v. Mor- New York, etc., R. Co. 30 Conn. gan, etc., R. Co. 42 La. Ann. 824; 184; Conners v. Burlington, etc., 8 So. Rep. 586. R. Co. 71 Iowa, 490; 32 N. W. i2a Walsh v. New York, N. H. Rep. 465; Worden v. Humeston, ^ H. R. Co. 173 Fed. 494; Fulgham etc., etc., R. Co. 72 Iowa, 201; "•'■ J^IWland Valley R. Co. 167 Fed. 33 N. W. Rep. 629; Nashville, etc., R. Co. V. Prince, 2 Heisk. (Tenn.) 580; Fowleker v. Nash, 660. 126 Walsh V. New York. N. H. & H. R. Oj. 173 Fed. 494. 168 FEDERAL EMPLOYERS' LLYBILITY ACT. support.'-'' If the death of the employee be instantaneous on receiving his injury, then there is no cause of action to survivor, and the amendment quoted above does not apply.^-'i Under the Federal statute the administrator has his option, when the deceased has brought an action during his lifetime to recover damages, to either prosecute that action or dismiss it and bring his own action ; but he cannot wage both causes of action, he must take his choice. § 105. Beneficiaries on death of injured employe. — In an instance of the death of the injured employe his personal representative brings the action for the benefit of those sur- viving him and they are entitled to the proceeds of any judg- ment that may be recovered in the following order, viz: First — The surviving widow or husband and children of such employe. Second — If there be no husband, widow or children, then for the benefit of the employe's parents. Third — If there be no beneficiaries under the first and second class, then for the benefit of the next of kin dependent upon such employe. If there be persons of the first class, all the persons of the second and third class are excluded; if there be none of the first and be those of the second class, all those of the third class are excluded; and it is only where there are none of the first and second classes that those of the third class can be considered as beneficiaries.'" i2cThe case of Fuljjham cited dren, no parent and no next of above wa.s discussed at len-jth in kin dopent.ing upon him; and a the Senate when this amendment state statute gives a cause of ac- ■was l)efore it. ^j^^jj wliere a person, in such an i2d j>,lion V. Great Northern Ry. instance is killed by the negli- Co. 38 ilont. 485; 100 Pae. 960. „,„,^ „f ^^^^^^^ ,J^„ ^^^ |^. "Dilhor V. Cleveland, etc., R. ministrator of the deceased main- Co. 34 Ind. App. 52; 72 N. E. tain an action under this state ^^P- 271- statute? If the act is to be con- Suppo.se the deceased employee strued as exclusive, then the left no surviving widow, no chil- action cannot be brought; if not DEATH BY ^\T10NGFUL ACT. 169 § 106. No husband or widow surviving.— It will be noted that the statute provides in the first class that the suit shall be brought "for the benefit of the surviving v/idow or hus- band and children of such employe," and the question nat- urally arises, "Suppose, where the deceased employe is a husband and father and no widow survives him, can the suit be maintained for the benefit of his children alone? Must there be a surviving widow in such an instance, in order to authorize the bringing of the suit?" These questions have been answered by some of the state courts in construing similar statutes, and held that though there be no widow sur- viving the deceased, but children survive, the action can be maintained.^* § 107. Next of kin dependent upon employe. — If there be no widow or husband and children or parent of the deceased employe, then "the next of kin dependent upon" him are entitled to the proceeds of the action, these falling in the third group of beneficiaries. But the fact that the next of kin are non-resident aliens does not defeat the action. ^^ Par- tial dependency is sufficient to authorize the maintenance as exclusive, then it can be. Con- ^° Rietveld v. Wabash R. Co. gress has failed to give a right 129 la. 249; 105 N. W. Rep. 515; of action for the benefit of credi- Pittsburg, etc., R. Co. v. Naylor, 73 tors, anu if the act is to be con- Ohio St. 115; 76 N. E. Rep. 505; strued as exclusive, then none can Baltimore, etc., R. Co. v. Bald- be maintained by an administra- win, 144 Fed. Rep. 53; Alfson v. tor. Bush Co. 182 N. Y. 393; 75 N. B. Steps towards a divorce, but not Rep. 230; Atchison, etc., R. Co. procured, still leaves the wife a v. Fajardo, 74 Kan. 314; 86 Pac. beneficiary. Abel v. Northamp- Rep. 301; Tano:- v. Municipal, ton, etc., Co. 212 Pa. St. 329; 61 etc., Co. 84 N. Y. Stat. 1053; 88 Atl. Rep. 915. App. Div. 251; Xaylor v. Pitts- '*City of Chicago v. Major, 18 burg, etc., R. Co. 4 Ohio C. C. 111. 349; Haggerty v. Central R. (N. S.) 437 {contra, Cleveland, Co. 31 N. J. L. 349; McMahon v. etc., R. Co. v. Osgood, 36 Ind. City of Xew York, 33 N. Y. 642; App. 34; 70 >J. E. Rep. 839); Quin V. Moore, 15 N. Y. 432; Hirschkovitz v. Pennsylvania R. Oldfield V. New York, etc., R. Co. Co. 138 Fed. Rep. 438. 14 N. Y. 310; Tilley v. Hudson R. Co. 24 N. Y. 471. 170 FEDER.VL. employers' LIABILITY ACT. of the suit.^® But in the case of a widow, husband, child or parent no question of dependency is involved.^^ § 108. Who are dependent on deceased. — In the previous section it is said that a partial dependency on the deceased was all that was necessary. Who is dependent is, of course, a question of fact. An invalid sister who has received each month thirty or thirty-five dollars, is unable to pay her doctor bills or to work, and is, in fact, dependent upon her deceased brother, comes within the statute.^* An indigent mother living Avith her unmarried son and depending upon him for support, is dependent upon him within the meaning of a statute simi- lar to the one under discussion.^'' Where an aged father lived in a foreign country, was feeble, destitute, unable to work, and the deceased had many times sent him money, it was held that he was dependent on the deceased son.-° But where it appeared that the alleged beneficiary was a half sister with two children, that the deceased came to see her at times and then usually gave her money, and sent her money every other week or so for her rent, and she had no other means of support, and since his death had supported herself, it was held that she was not dependent upon him, there being nothing to show the amount of her earnings or that she was, in fact, dependent upon him.^^ The question of de- pendency does not depend upon a strict legal right to it, as where a person because of some disability, and without property, was dependent on the deceased for support, and because of past support he had reasonable expectancy of the continuation if the deceased had lived.-- And the fact that ^"Savannah El. Co. v. Bell, 124 etc., Co. (Mo. App.) 71 S. W. Ga. 66.3; 53 S. E. 109; Ix.uisville, Rep. 1062. etc., R. Co. V. Jones (Fla.), 39 =» Boyle v. Columbia, etc., Co. So. Rep. 485. 1S2 IMass. 93; 64 N. E. Rep. 726. " Beaumont, etc., Co. v. Dill- ^ ITodnett v. Boston, etc., R. worth, 16 Tex. Civ. App. 257; 94 Co. 156 Mass. 86; 30 N. E. Rep. S. W. Rep. 35C. 224. " Daly V. New .Jersey, etc., R. ^ Louisville, etc., R. Co. v, Co. 155 Ma.ss. 1; 29 N. E. Rep. Jones, 45 Fla. 407; 34 So. Rep. 507. 246; United States, etc., Co. v. "Bowerman v. Lackawanna, Sullivan, 22 App. Dec. 115. DEATH BY WRONGFUL ACT. 171 the deceased had paid attentions to a j^oimg lady with a view to marriage does not even tend to show his parents were not dependent on him for support.-^ Where two brothers and a nephew, with whom deceased lived and did housework they were held entitled to recover, though there was no legal obligation on her part to support them.-* The fact that the beneficiary is a married woman will not defeat her right of action where she does not live with her husband, is not supported by him but was, in fact, dependent on the de- ceased.-^ And the fact that the beneficiary is supported by others after the death of the deceased does not prevent a recovery.-" The fact of dependency must be established by the plaintiff-^ for there can be no recovery unless that be shown.-^ § 109. Bastard. — A suit for the benefit of a bastard where its reputed father has been killed cannot be maintained; for he is not of "kin" to the reputed father.-" And it has been held that the mother of an illegitimate child cannot recover for its death,"° though it is believed that this is an incorrect decision, and the contrary has been held.^^ ^Futz V. Western U. T. Co. 25 ^McDonald v. Pittsburg, etc., Utah, 2G3; 71 Pac. Rep. 209. R. Co. 144 Ind. 459; 43 N. E. Rep. ^ Smith V. Michigan, etc., R. 447 ; Thornburgh v. American, Co. 35 Ind. App. 188; 73 N. E. etc., Co. 141 Ind. 443; 40 N. E. Rep. 928. Rep. 1062; Dickinson v. North- ^ International, etc., R. Co. v. eastern R. Co. 2 H. & C. 735; 33 Boykin, 32 Tex. Civ. App. 72; 85 L. J. Exch. 91; 9 L. T. (N. S.) S. W. Rep. 1163. 299; 12 W. R. 52; Good v. Towns, =^ McDaniels v. Royle, etc., Co. 56 Vt. 410. 110 Mo. App. 706; 85 S. W. Rep. ^o jj^j-kins y, Philadelphia, 15 679. Phila. 286. See Marshall v. Wa- 2' Willis, etc., Go, v. Grizzell, bash R. Co. 46 Fed. Rep. 269; 198 111. 313; 65 N. E. Rep. 74; Robinson v. Georgia R., etc., Co. Missouri, etc., R. Co. v. Freeman 117 Ga. 168; 43 S. E. Rep. 452; (Tex. Civ. App.), 73 S. W. Rep. Runt v. Illinois, etc., R Co. 88 542. Miss. 575; 41 So. Rep. 1; Mc- ^ Swift & Co. V. Johnson, 138 Donald v. Southern R. Co. 71 S. Fed. Rep. 867; Diller v. Cleve- C. 352; 51 S. E. Rep. 138. land, etc., R. Co. 34 Ind. App. 52; ^^ Muhl v. Southern M. R. Co. 72 N. E. Rep. 271. 10 Ohio St. 272. 172 FEDERAL EilPLOTERS LIABILITY ACT. § 110. Emancipated child. — The fact that the child of the deceased father has been emancipated is no defense. '- Nor is it a bar to the action that the child was not living with the father at his death,^^ or its custody awarded to the divorced wife.^* § 111. Adopted child. — It has been held that an adopting father could sue for the death of his adopted child,^^ and it would seem that suit could he brought for the death of the adopting father where such adopted child was the sole bene- ficiary. Yet it has been held that such a child is not "next of kin."^^ But a child that had been merely given to the deceased cannot be treated as a beneficiary, not being of kin.^^ § 112. Posthumous child. — The action may be brought for the benefit of a child en ventre sa mere at the time of its father's death. ^® Such a child is a "surviving child. "^* § 113. Beneficiaries must survive deceased — Complaint. — If there be no person alive designated as a beneficiary by the statute, then no action can be maintained. The survival of »=:Mattock V. Williamsville, etc., ^ State v. Soale, 36 Ind. App. R. Co. (Mo.) 95 S. W. Rep. 849. 73: 74 X. E. Rep. 1111 (sale of " Giilla V. Lehigh, etc., Co. 28 intoxicating liquors to the father. Pa. Super. Ct. 11. resulting in his death) ; Quinlen ''Taylor v. San Antonio, etc., v. Welch, 69 Hun, 584: 23 X. Y. Co. 15 Tex. Civ. App. 344; 93 Supp. 903; Thelluson v. Wood- S. W. Rep. 674. ford, 4 Ves. 227; 11 Ves. 112. ^ Thornburgh v. American, etc., ® Xelson v. Galveston, etc., Ry. Co. 141 Ind. 443; 40 X. E. Rep. Co. 78 Tex. 621; 14 S. W. Rep. 1062. 1021; Texas, etc., Ry. Co. v. Rob- » Heidcamp v. Jersey City, etc.. ertson, 82 Tex. 657 ; 'l7 S. W. Rep. R. Co. 69 X. J. L. 284; 55 Atl. 1041; The George and Richard, L. Rep. 239. R- Ad. & Ecc. 466: 24 L. T. ^Elwood St. Rv. Co. V. Cooper, ^'^- ^O 717: 20 Weekly Rep. 245; 22 Ind. App. 459'; 53 X. E. Rep. Galveston, etc., R. Co. v. Contreras, 1092; Elwood St. Ry. Co. v. Ross, ^1 Tex^^ Civ. App. 489; 73 S. W. 26 Ind. App. 258; 58 X. E. Rep. ^P" ^^^^• 535. DEATH BY WRONGFUL ACT. 173 a beneficiary is essential to the maintenance of the cause of action.**^ It is, therefore, essential for the administrator to show that a person survived the deceased employe who was then a beneficiary; and ff he do not, his complaint or declaration will be insufficient;*^ and if it do not contain an allegation of that fact, the judgment will be subject to a motion to arrest it/^ § 114. Statute of limitations. — The auction must be brought within two years after the death of the injured person,*' *" Koening v. City of Covington (Ky.), 17 S. W. Eep. 128; Cincin- nati, etc., H. Co. V. Pratt, 92 Ky. 233; 17 S. W. Rep. 484; Ken- tucky, etc., R. Co. V. McGinty, 12 Ky. L. Rep. 482 ; 14 S. W. Rep.'^601 ; Louisville, etc., R. Co. v. Coppage (Ky.), 13 S. W. Rep. 1086; Ken- tucky, etc., R. Co. V. Wainwright (Ky.), 13 S. W. Rep. 438; Cin- cinnati, etc., R. Co. V. Adam (Ky.), 13 S. W. Rep. 428; Louis- ville, etc., R. Co. V. Merriweather (Ky.), 12 S. W. Rep. 935; Con- ley V. Cincinnati, etc., R. Co. (Ky.) 12 S. W. Rep. 764; Hen- ning V. Louisville, etc., Co. (Ky. ) 12 S. W. Rep. 5.50; Wiltsie v. Town of Linden, 77 Wis. 152; 46 N. W. Rep. 234; Woodward v. Chicago, etc., R. Co. 23 Wis. 400; Serensen v. Xorthern Pac. Ry. Co. 45 Fed. Rep. 407; Lilly v. Char- lotte, etc., R. Co. 32 S. C. 142; 10 S. E. 932; Warren v. Engle- hart, 13 Neb. 283; 13 N. W. Rep. 401; Conlin v. City of Charleston, 15 Rich. L. 201; Burlington, etc., R. Co. V. Crockett, 17 Neb. 570; 14 N. W. Rep. 219. *^ Stewart v. Terre Haute, etc., R. Co. 103 Ind. 44; 2 S. E. Rep. 208; Chicago, etc., R. Co. v. La Porte, 33 Ind. App. 691; 71 N. E. Rep. 166; Lamphear v. Bucking- ham, 33 Conn. 237; Indianapolis, etc., R. Co. V. Keely, 23 Ind. 133; Jeffersonville, etc.. R. Co. v. Hen- dricks, 41 Ind. 48; Chicago, etc., R. Co. V. Morris, 26 111. 400 Quincy Coal Co. v. Hood, 77 111 68; Conant v. Griffin, 48 111. 410 Clore V. Mclntire, 120 Ind. 262 22 N. E. Rep. 128; Missouri Pac Ry. Co. V. Barber, 44 Kan. 612 24 Pac. Rep. 969 ; Safford v. Drew 3 Duer. 627; Geroux v. Graves, 62 Vt. 280; 19 Atl. Rep. 987 Lucas V. New York, etc., R. Co 21 Barb. 245; Northern Pac. R Co. V. Ellison, 3 Wash. 225; 28 Pac. Rep. 233; Westcott v. Cen- tral Vt. R. Co. 61 Vt. 638; 17 Atl. Rep. 745; Schwarz v. Judd, 28 Minn. 371; 10 N. W. Rep. 208; East Tennessee, etc., Ry. Co. v. Lilly, 90 Tenn. 563; 18 S. W. Rep. 118; Barnum v. Chicago, etc., R. Co. 30 Minn. 461; 16 N. W. Rep. 364. *^Stewart v. Terre Haute, 103 Ind. 44; 2 N. E. Rep. 208. *' Goodwin v. Bodean, etc., Co. 109 La. 1050; 34 So. Rep. 74; County V. Pacific, etc., Co. 68 N. J. L. 273; 53 Atl. Rep. 386; Staunton Coal Co. v. Fischer, 119 111. App. 284; Dare v. Wabash, etc., R. Co. 119 111. App. 256; Crape v. Syracuse, 183 N. Y. 395; 76 N. E. Rep. 465; Winfree v. Northern Pac. Ry. Co. 173 Fed. 65. 174 FEDERAL EMPLOYERS' LLVBILITY ACT. and the time is not extended by the pendency and dis- missal of a former action as allowed by some codes in the ordinary cases."" The statute reciuiring the action to be brought within two years is not, strictly speaking, a stat- ute of limitations, which must be specially pleaded, but is an absolute bar, not removable by any of the ordinary exceptions of that statute." "This is not strictly a statute of limitations," said the Supreme Court of North Carolina. "It gives a right of action that would not otherwise exist. * * * It must be accepted in all respects as the statute gives it. Why the action was not brought within the time does not appear, but any explanation in that respect would be unavailing, as there is no saving clause as to the time within which the action must be begun. "^'^ "The time within which the suit must be brought," said Chief Justice Waite, "operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition at- tached to the right to sue at all." "The liability and the remedy [in admiralty] are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right. " *^ It follows from those statements that if the complaint shows the action was not brought within the two years, it is demurrable.'*^* No exception can be alleged to excuse the delay.*** The statute provides that the action must be "commenced within two years from the ^* Rodman v. Missouri Pac. Ry. Kinp;ston, 106 N. C. 205; 10 S. Co. G5 Kan. 045; 70 Pac. Rep. E. Roj). 097. 642; 59 L. R. A. 704; Cavanagh " Tlie Harrisburg, 119 U. S. V. Ocean, etc., Co. 13 N. Y. Supp. 199; 7 Sup. Ct. Rep. 109; 30 L. 540; 9 X. Y. Supp. 198; 11 N. Y. Ed. 358; reversing 15 Fed. Rep. Supp. 547; 12 N. Y. Supp. 609; 610. Boyd V. Clerk, 8 Fed. Rep. 849. "* Hanna v. Jeffersonvllie R. "Hill V. New Haven, 37 Vt. Co. 32 Ind. 113: JefTersonvi"-, 501; Landigan v. New York, etc., etc., R. Co. v. Hendricks, 41 Ind. R. Co. 5 Civ. Proc. Rep. (N. Y.) 48; Ceorge v. Chicago, etc., R. 76; Bonnell v. Jowett, 24 Ilun, Co. 51 Wis. G03 ; 8 N. W. Rep. 524. 374. "Taylor v. Cranberry, etc., Co. "Hill v. New Haven, 37 Vt. 501. 94 N. C. 525; Best v. Town of DEATH BY WRONGFUL ACT 175 day the cause of action accrued." "Where the employe is instantly killed, the cause of action accrues at once and the statute immediately begins to run/'* In some states it has been held that the statute does not begin to run until an administrator has been appointed ;^° but directly the opposite has also been held.^^ An amendment of the complaint may be made after the two years have expired, if it does not state a new cause of action.^- An important question is presented where the injured employe does not die because of his in- juries until some time after he has received them — a year, for instance. Must the action be brought within two years from the date of his injury or within two years from the date of his death? A little consideration of this question will show that the suit can be brought within two years after the death and that the date of the injury is immaterial in this respect. While the injured person was alive he could have no administrator, nor could his parents, wife, children or next of kin dependent upon him bring an action because of his injuries; and if he brought the action he would be entitled to the damages recovered and not they. So much so is this true that if he brought the action and then died before verdict or judgment his administrator cannot be sub- stituted as plaintiff, but must bring a new action. The administrator's right of action is a new and independent one, and is not a survival of the deceased's cause of action.^^ *«Hanna v. Jeffersonville R. Co. 126 Pa. St. 622; 17 Atl. Rep. 32 Ind. 113. 884; Jeffersonville, etc., R. Co. v. ^"Andrews v. Hartford, etc., R. Hendricks, 41 Ind. 48; Kuhns v. Co. 34 Conn. 57 ; Sherman v. Wisconsin, etc., Ry. Co. 76 Iowa, Western Stage Co. 24 Iowa, 515; 67; 40 N. W. Rep. 92; Moody v. see Louisville, etc., R. Co. v. San- Pacific R. Co. 68 Mo. 470; Daley ders, 86 Ky. 259; 5 S. W. Rep. v. Boston, etc., R. Co. 147 Mass. 563. 101; 16 N. E. Rep. 690. " Fowlkes V. Nashville, etc., R. ^^ Dillier v. Cleveland, etc., R. Co. 5 Baxt. 663; 9 Heisk. 829; Co. 34 Ind. App. 52; 72 N. E. see Bledsoe v. Stokes, 1 Baxt. Rep. 271; Hilliker v. Citizens St. 312, and Flatley v. Memphis, etc., Ry. Co. 152 Ind. 86; 52 N. E. R. Co. 9 Heisk. 230. Rep. 607; Pittsburg, etc., R. Co. «City of Bradford v. Downs, v. Hosea, 152 Ind. 412; 53 N. E. 176 FEDERAL EMPLOYERS LLiBILITY ACT. It necessarily follows that the statute begins to run from the date of the death of the injured person. § 115. Who brings the action in case of death. — In case of the death of the injured jierson before he brings an action, only his personal representatives can bring the action. Of course, personal representative means his ad- ministrator or executor. The cause of action is given by statute, and only the person to whom it is given can bring the action to recover damages ; and the statute has named that personal representative or that person. Even though there be no widow or husband and children or parents, and no personal representative, the "next of kin" cannot main- tain the action.^^^ If the deceased has brought suit and then dies, only his personal representatives can jDrosecute it to judgment.^^^ Rep. 419: :\ralott v. Shinier, 153 Ind. 35; 54 N. K. Rep. 101; Hede- kin V. Gillespie, 33 Ind. App. {J50; 72 ]Sr. E. Rep. 143; All v. Barn- Avell County, 29 S. C. 161; 7 S. E. Rep. 58. 53aFithian v. St. Louis & S. F. Ry. Oo. 188 Fed. 842; Thompson V.' Wabash Ry. Co. 184 Fed. 554. 53b As to right of an alien to recover damages, we make the fol- lowing extract from Cetofonte v. Camden Coke Co. 78 N. J. 662 ; 75 Atl. 913, holding that he may: "There is much conflict in the cases arising in otlier jurisdictions under someu'hat siniilar statutes, both in this country and England, upon this question. The great weight of authority, however, sup- ports the proposition that nonresi- dent aliens are not excluded from among the beneficiaries. The lead- ing case is Mulhall v. Fallon, 176 Mass. 266; 57 X. E. 386. That is followed by Kelh'ville Coal Co. v. Petraytis, 195 111'. 215; 63 N. E. 94; Szymanski v. Elumenthal, 3 Pennewill (Del.) 558, 52 Atl. 347; Renlund v. Commodore JMin. Co. 8"9 Minn. 41; 93 N. W. 1057; Bon- throni V. Phoenix Light & Fuel Co. 8 Ariz. 129; 71 Pac. 941; Romano v. Capit O'Callaghan v. Bode, 84 CaL 489; 24 Pac. Rep. 269. " Ewen V. Chicago, etc., R. Co. 38 Wis. 613; Union Ry., etc., Co. V. Shacklet, 119 IlL 232; 10 N. E. Rep. 896. If his UHtors of administration have been revoked, that fact must be put in issue by a special plea. Burlington, etc., R. Co. v. Crock- ett, 17 Neb. 570; 24 N. W. Rep. 219. "Daley v. Boston, etc., R. 'Co. 147 Mass. 101; 16 N. E. Rep. 690. "Harris v. Central R. Co. 78 Ga. 525; 3 S. E. Rep. 355. ''* South Carolina R. Co. v. Nix, 68 Ga. 572; see Haynie v. Chi- cago, etc., R. Co. 9 111. App. 105. "Blake v. Midland Ry. Co. 18 Q. B. 93; 21 L. J. Q. B. 233; 16 Jur. 562; Illinois Cent. R. Co. v. Barron, 5 Wall. 90; 18 L. Ed. 591; affirming 1 Biss. 453; Fed. Cas. No. 1,053; Wharton v. Chicago, etc., R. Co. 2 Biss. 282; S. C. 13 Wall. 270; Kansas Pacific Ry. Co. V. Cutter, 19 Kan. 93; State v. Baltimore, etc., Ry. Co. 24 Md. 84; City of Chicago v. Scholten, 75 111. 468; Little Rock, etc., Ry. Co. V. Barker, 33 Ark. 350; Myn- ning v. Detroit; etc., Co. 59 Mich. 257; 26 N. W. Rep. 514; Hutch- ins V. St. Paul, etc., R. Co. 44 Minn. 5; 46 N. W. Rep. 79; An- derson V. Chicago, etc., R. Co. 35 Neb. 95; 52 N. W. Rep. 840; Besenecker v. Sale, 8 Mo. App. 211; Tilley v. Hudson, etc., Co. 29 N. Y. 252; 24 N. Y. 471; Penn- sylvania Co. v. Zebe, 33 Pa. St. 318; March v. Walker, 48 Tex. 375; Louisville, etc., R. Co. v- Rush, 127 Ind. 545; 26 N. E. Rep. 1010; Morgan v. Southern Pac. R. Co. 95 Cal. 510; 30 Pac. Rep. 603; Canadian Pac. Ry. Co. v. Robinson, 14 Can. Sup. "ct. 105. DEATH BY WRONGFUL ACT. 181 physical and mental suffering of the deceased ;'^ nor can they be recovered for medical and funeral expenses.'^^ But if the deceased has brought an action to recover damages, and then dies, and his personal representative continues it, only such damages as the deceased would have recovered can be awarded. § 119. Measure of damages. — It will be observed that the statute does not undertake to fix a limit as to the amount of damages recoverable. Therefore, the courts are at liberty to apply the usual rules followed in such instances. The question is, ' ' What loss did the beneficiaries suffer by the death of the deceased?" In ascertaining that loss the age of the deceased, his earning capacity, his probable earnings, his habits of industry, his drinking habits, and anj^ other fact bearing upon his capacity to furnish the beneficiaries a live- lihood may be considered.^* The special aptitude of the de- ^^ Blake v. Midland Ry. Co. 18 Q. B. 93; 21 L. J. Q. b". 233; 16 Jiir, 562; Illinois Cent. R. Co. v. Barron, 5 Wall. 90; 18 L. Ed. 591; affirming 1 Biss. 453; Fed. Cas. No. 1053 ; Railroad Co. V. Whitton, 13 Wall. 270; 20 L. Ed. 571; affirming 2 Biss. 282; Fed. Cas. No. 17,597; Old- field V. New York, etc., R. Co. 14 N. Y. 310; Donaldson v. Mis- sissippi, etc., R. Co. 18 Iowa, 280; Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; Potter v. Chicago, etc., R. Co. 21 Wis. 372; South- ern, etc., Co. V. Bradley, 52 Tex. 587; Kansas Pac. Ry. Co. v. Cut- ter, 19 Kan. 83. "Dolton V. South Eastern R. Co. 4 C. B. (N. S.) 296; 4 Jur. (N. S.) 711; 27 L. J. C. P. 227. It has been argued that the administrator may recover the same damages the deceased em- ])loyee would have recovered if he had pressed his cause of action to judgment before his death. But that argument was based upon a desire or effort to show that the administrator's cause of action accrued when the" injury was inflicted and not when death supervened, and thus enable the defendant employer to take ad- vantage of the statute of limita- tions when he could not do so if the cause of action did not accrue to the administrator until death occurred. 78 Vreeland v. Michigan Central R. Co. 189 Fed. 495; Kaght v. Sadtler, etc., Co. 91 Mo. App. 574; St. Louis, etc., Ry. Co. v. Bowles (Tex. Civ. App.), 72 S. W. Rep. 451 ; Watson v. Seaboard, etc., R. do. 133 N. C. 188; 45 S. E. Rep. 555; Davidson, etc., Co, v. Sever- son, 109 Tenn. 572; f2 S. W. Rep. 1812 F|-|>1K-\1, KMIM.OVKUS' 1 .1 AlUl .ll' V ACT. ceased for a iiartieiiliir tratlc ni.i.v In* (•(Mis'uIimvcI.''" ?io his? lieallli may 1h> sluuvii as lH>ar'mi;- upon his oMrniiiir ciipncily.*"' His disposition to foiilribiite lo Ihc sui'poft o\' \\u)sc dcpcnd- eiit upiMi liiin, or to that ol' his wife, cliihlrtMi oi- i>af(Mils, is a I'ai'tor t() bo cotisidorod.'"' In tho case of a widow, at h'ast, the ainoiuit of dainai;«*s she siilVered inav l)t> basctl upon tlie U'njjflh o[' tinu> the ih'ccast'd wouKl pi-ohalily have- lived;"' anil tliis is not atVeiMed by her subsrqufnt uiarriaui'." ' Wdu're the deceased liail a ehild. tlu> value o\' his stM-vir(>s ioi- the ean> ami edueation ot* such t'hild may \h' taken into eonsidera- tion.'"" as wi'll as his pi-obable inen'ase ot" earniuij: power.*"* \VhiM'(> the wife is tht> benetii'iary, the ineasnn> of thunaires is the probable aiu(»unt she woidd ha\r rccfived if he had lived and not Irs probable ear-ninfZ's.'"'' if tlu' benetii'iarii^s are next, of Uin depeniliMd upon him. proof i»f nuM-e ri'lationshij* is not sutlieient ; the actual fact of expectancy must be shown. '^^ 907; Nejil v. Wilmiiigt^Mi oti-.. To. f.-JO; ImiI s.h' ll.'will v. Kust, <-to., 3 ronn. I Del.) 4l\) \ CnrUT v. c\>. (Mirii.) US N. W . K.-p. !»!iii. NortJi Carolina 11. Co. KJV) N. C. "* Ciinu'roii, i>to.. (\>. v. Aiult>rson, 491); 52 8. E. l\ie\\ M2; l?crtuim»ut, j)s 'JVx. Iftti; SI S. \\ . Kcp. 282. vU:., R. Co. V. Uilwovth, Hi 'IV-X. :Moi(alitv till. Us mav W based Civ. App. 257; !)4 S. W. Rop. :?r>-2; „„ ,,,^. oxpcc-taiu-v ot'litV. Mix IvHott V. IVtoi-son, 125 la. 404; ^. n,„„,,„, ,, ,.,,..", Co. S5 N. Y. 101 K VV Rej). 173; tNui Ant*mio, ^^ ^y^^. ^j-.. ^.. ^^ ^. ^j .,,, oto., 1\, l\>. V. l>i(.K-k (Tox, Civ App.), SO «S. W. Rep. 42i2. Knott V. retorson, 125 la. 401; 101 \. \V. Rop. 524; Vi. Worth. " Snydor v. Lake Slioro. oti-.. Ky. etc., K. Co. v. Lintliii-uin, 'X\ Tox. Co. 13i Midi. 41S; 5»1 N. \V. Rop. riv. App. ;{75; 77 S. W. K,p. 10. (543; Kvarts v. Santa Rarlmra, "llalvi'ison v. Seattle V.\. Co. etc., R. Co. (Cal. App.); Sli Rao. ;{5 Wash. (iOO; 77 Pae. K.p. 105S: Rop. 830; Roitor. o(o.. Co. v. How- r.arnos v. Columbia l.eail Co. 107 lin. 1-14 Ala. 102; 40 So. Rop. 280. Mo. App. (!08; 82 S. W. Roj). 203. •"CollVy. etc.. Co. v. Carter. 05 ""Rood v. (,)ut>en Anno R. Co. Kan. 505; 70 Pae. Rep. 035. 4 IVnn. (Del.) 413; 57 .Ml. Rop. " Fajnrdo v. Now York Cent. 520; Houston, oto., R. Co. v. Tur- R. Co. 84 N. Y. App. Div. 354. ner, 34 Tox. V'w. App. .iOT ; 7S S. •*Cox v. Wilniinjjton. etc.. Ry. W. Rep. 712 (jury to eon^i(Ii>r Co. 4 IVnn. 102 (1X4.); 53 Atl. whether a less sum presently paid Rep. 500. would eoniiHMisate her.) "Consolidated Store Co. v. ^lor- ■"■'Standard, *'te., Co. v. Munsoy, gun. 100 Ind. 241; 00 N. E. Rop. 33 Tox. Civ. App. 110; 70 S. W. 000; Chicap). etc.. R. Co. v. Dris- Rep. 031. coll, 207 111. 0; 00 N. K. Rep. DEATH BY WRONGFUL ACT. 183 Declarations of deceased evincing a i)robable support are ad- missible/'* If the suit is for the loss of a wife, the husband being the bcineficiary, the fa» Hecht v. Ohio, etc., R. Co. Ry. Co. 72 N. ,J. L. 480; 63 Atl. 132 ind. 507; 32 N. E. Rep. 302; Rep. 339; Cleveland, etc., R. Co. 54 ^m. & Eng. R. Cas. 75. V Osgood, 34 Ind. App. 34; 73 n-Tnternational, etc., R. Co. v. ^\,^V^P-i.n. ^ . Kuohn, 70 Tex. 582; 8 S. W. Rep. 112 /„ re Williama Est. 130 Iowa. 484. DEATH BY WRONGFUL ACT. 187 § 124. Costs. — The administrator is not liable personally for the costs of the suit,"® but the estate he represents is liable, if, at least, solvent."^ § 125. Suit by poor person. — An injured person may bring an action as a poor person, and may appeal any judgment against him, without being required to prepay fees or costs or for the printing of the record in the appel- late court or give security therefor, before or after bringing suit or action, upon making a showing to the court that he is unable to pay the costs of the suit or action of a writ of error or appeal, or to give security for them, and stating "that he believes that he is entitled to the redress he seeks by such suit or action on writ of error or appeal, and setting forth briefly the nature of his alleged cause of action or appeal." ^^'* § 126. Death of beneficiary. — If the beneficiary die, even after suit brought, the suit abates.^^^ And where an action is brought for the widow who is the sole beneficiary and she dies, an action cannot be thereafter prosecuted for the bene- fit of the deceased's parent or next of kin dependent upon him.^^' But if there be two or more beneficiaries standing ""Evans v. N^ewland, 34 Ind. 41 Ind. 48); Woodward v. Clii- 112; Kinney v. Central R. Co. 34 ^ cago, etc., R. Co. 23 Wis. 400 N. J. L. 273 ; see Hicks v. Barrett, Railroad v. Bean, 94 Tenn. 388 40 Ala. 291. 29 S. W. Rep. 370; Railway Co »" Chicago, etc., R. Co. v. Harsh- '^^ Lilly, 90 Tenn. 563 ; 18 S. W, man, 21 Ind. App. 23; 51 N. E. ^ep. 243; 49 Am. & Eng. R. Cas Rep. 343. 495; Chivers v. Rogers, 50 La i"aThi3 statute is set forth at ^nn. 57; 23 So. Rep. 100; Saun- length in the Appendix A. ders v. Louisville, etc., R. Co. 40 '■^Dillier v. Cleveland, etc., R. C. C. A. 465; 111 Fed. Rep. 708; Co. 34 Ind. App. 52; 72 N. E., Hennessey v. Bavarian, etc., Co. Rep. 271 (disapproving of Jeffer- 145 Mo. 104; 46 S. W. Rep. 966. sonville, etc., R. Co. v. Hendricks, "' Railroad Co. v. Bean, supra. 188 FEDERAL EMPLOYERS LIABILITY ACT. in the first or second order exclusively, and one die, the action may be prosecuted for those living/^" § 127. Declarations of deceased. — If the declarations of the deceased formed a part of the res gestae, they are ad- missible ; ^-^ but if they do not form a part of the res gestae they are not admissible.^^^ § 128. Distribution of amount recovered. — The federal statute makes no provision for the distribution of the amount recovered. How the amount shall be distributed is left to the laws of the state where the administrator is appointed. ^^^ The mere fact that a child was not named in the complaint as a beneficiary will not deprive him of his share.^-* § 129. Rig-ht of widow to sue under state stat- ute. — Some of the state statutes give to a widow the right to sue when her husband is killed while engaged in inter- i="Senn v. Southern Ry. Co. 124 Mo. 621: 28 S. W. Rep. 66. If an administrator die, his succes- sor does not bring the action. Hodges V. Webber, 65 N. Y. App. Div."l70; 72 N. Y. Supp. 508. i^Brownell v. Pacific R. Co. 47 Mo. 240; Fordyce v. McCouts, 51 Ark. 509; 11 S. W. Rep. 694; Lit- tle Rock, etc., R. Co. v. Leverett, 48 Ark. 333; 3 S. W. Rep. 50; Richmond, etc., Co. v. Hammond, 93 Ala. 181; 9 So. Rep. 577; Mer- kle V. Benningtcm Tp. 58 Mich. 156; 24 X. W. Rep. 776; Mc- Keiguo V. City of Janesville, 68 Wis. 50; 31 N. W. Rep. 298; Gal- veston V. Barbour, 62 Tex. 172; Stockmann v. Terre Haute, etc., R. Co. 15 Mo. App. 503; Ent- whistle V. Feighner, 60 Mo. 214. '^Pennsylvania R. Co. v. Long, 94 Ind. 250; City of Bradford v. Downs, 126 Pa. St. 622; 17 Atl. Rep. 884; Louisville, etc., R. Co. v. Berry, 2 Ind. App. 427; 28 N. Y-. Rep. 714: contra. Perigo v. Cliicado, etc., R. Co. 55 Iowa. 326; 7 X. W. Rep. 621: Lord v. Pueblo, i-tc, R. Co. 12 Colo. 390; 21 Pac. Rep. 148. 123 Denver etc., R. Co. v. War- ring, 37 Colo. 122; 816 Pac. Rep. 305; Hartley v. Hartley, 71 Kau. 691; 81 Pac. Rep. 505. In 1910, on the passage of the amendment to the act, an earnest effort was made in the Senate to amend the statute in this respect. See note 13 of this chapter. 124 Oyster V. Burlington, etc., Co. 65 X"eb. 719; 01 X. W. Rep. 693; 59 L. R. A. 291; Duzan v. ]\Iyers, 30 Ind. App. 227; 05 X. E. Rep. 1046. DEATH BY WRONGFUL ACT. 189 state commerce. Can she sue? Can his administrator sue? Can they both sue? Can one sue and bar the suit of the other? These are very important questions if the act be not construed as exclusive. If it be not so construed, then two suits might be brought, one by the widow, the other by the administrator. Would the courts allow two recover- ies ; or would a recovery in one be a bar to the other ? If the widow accepted her share of the damages received by the administrator, she would clearly estop herself to bring or maintain an action to recover damages; for she could not claim the right to recover or receive two dam- ages. But if she has the right to bring a suit and recover damages, then the fact that the administrator brought an action and recovered damages cannot be pleaded as a bar to her action ; and vice versa. If the act, however, is exclusive, then she has no right to bring and maintain an action ; but must look to the administrator 's suit for her redress.^^** 124* The ehanoes are that the ministrator of the deceased. This courts will hold that in case of an will be upon the theory thart; for interstate employee, the ■svidow, the death of an interstate eom- notwithstanding the state statute, merce employee the Federal stat- cannot maintain an action, but the ute affords a complete remedy and action must be brought by the ad- supersedes all state legislation, See § 115. CHAPTER VII. RELEASE OF CLAIM FOR DAMAGES. SECTION. SECTION. 130. What contracts of release 133. Contract for future release forbidden. not binding on benefi- 131. 'Constitutionality of Section claries. 5 of this statute. 134. Release by beneficiary. 132. Receipt of relief money. § 130. What contracts of release forbidden. — The statute concerning releases of the railroad from liability because of injuries received by the employe is very broad. It prohibits "any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act," and declares that it shall be void. It is difficult to say just what interpretation the courts will give this statute, as it is in derogation of the right of contract but in the interest of public policy. Where a statute provided that, "All con- tracts made by railroads * * * with their employes, or rules or regulations adopted by any corporation releasing it from liability to any employe having a right of action under the provisions" of the statute, were "declared null and void," it was held that a contract with a voluntary relief depart- ment maintained by a railroad of which an employe was a member, to the effect that if he accepted benefits because of his injuries from such relief department he waived his right of action against the railroad company to recover damages because of such injuries, did not fall within the prohibition of the statute and was valid. The employe had his choice: if he received relief money from the voluntary relief associa- tion, he released the railroad company; and if he brought suit against the railroad company he released the relief de- partment. The contract was upheld notwithstanding the 190 RELEASE OF CLAIM FOR DAMAGES. 191 statute.^ In construing a similar contract, it was said by one court: "But even in cases of injury through the company's negligence there is no waiver of any right of action that the person injured may thereafter be entitled to. It is not the signing of the contract but the acceptance of benefits after the accident that constitutes the release. The injured party, therefore, is not stipulating for the future, but settling for the past; he is not agreeing to exempt the company from lia- bility for negligence, but accepting compensation for an in- jury already caused thereby."- In still another case from the same state, it was said: "In the present case there is an additional agreement that the plaintiff shall 'execute such further instrument as may be necessary formally to evidence such acquittance,' and it is urged that no such defense has been executed by plaintiff. But it is not necessary that it should be. The acceptance of benefits is the substance of the release, and the agreement for a further instrument is by its express terms a mere formality for convenience of evidence." ^ "The contract forbidden by statute is one relieving the * Pittsburg, etc., R. Co. V. Moore, cago, etc., R. Co. 93 Iowa, 284; 152 Ind. 345; 53 N. E. Rep. 290; 61 N. W. Rep. 971; 33 L. R. A. 44 L. R. A. 638; Pittsburg, etc., 492; Fuller v. Baltimore etc., R. Co. V. Hosea, 152 Ind. 412; 53 Assn. 67 Md. 433; 10 Atl. Rep. N. E. Rep. 419; Pittsburg, etc., 237; Chicago, etc., R. Co. v. Cur- R. Co. V. Montgomery, 152 Ind. tis, 51 Neb. 442; 71 N. W. Rep, 1; 45 N. E. Rep. 582, is overruled. 42; Maine v. Chicago, etc., R. This section of the Federal Co. ( Iowa ) ; 70 N. W. Rep. 630 ; statute is undoubtedly constitu- Leese v. Pennsylvania Co. 10 Ind. tional if the preceding sections App. 47; 37 N. E. Rep. 420; Chi- are. cago, etc., R. Co. v. Miller, 22 2 Johnson v. Philadelphia, etc., C. C. A. 264 (inferentially disap- R. Co. 163 Pa. St. 127; 29 Atl. proving the decision below, re- Rep. 854. ported in 65 Fed. Rep. 305); * Ringle v. Pennsylvania R. Co. State v. Baltimore, etc., R. Co. 36 164 Pa. St. 529; 30 Atl. Rep. 492; Fed. Rep. 655; Owens v. Balti- 44 Am. St. Rep. 628. To same re- more, etc., R. Co. 35 Fed. Rep. suit is Otis v. Pennsylvania Co. 715; 1 L. R. A. 75; Eckman v. 71 Fed. Rep. 136; Shaver v. Penn- Chicago, etc., R. Co. 169 111. 312; sylvania Co. 71 Fed. Rep. 931; 48 N. E. Rep. 496; 38 L. R. A. Pittsburg, etc., R. Co. v. Cox, 55 750; Pittsburg, etc., R. Co. v. El- Ohio St. 497; 45 N. E. Rep. 641; wood, 25 Ind. App. 671; 58 N. E. 35 L. R. A. 507; Donald v. Chi- Rep. 866. 192 FEDERAL EMPLOYERS' LIABILITY ACT. company from liability for the future negligence of itself and employes," said the Supreme Court of Indiana. "The con- tract pleaded does not provide that the company shall be relieved from liability. It expressly recognizes that enforce- able liability may arise, and only stipulates that if the em- ploye shall prosecute a suit against the company to final judgment, he shall thereby forfeit his right to the relief fund, and, if he accepts compensation from the relief fund, he shall thereby forfeit his right of action against the company. It is nothing more or less than a contract for a choice between sources of compensation, where but a single one existed, and is the final choice — the acceptance of one against the other — that gives validity to the transaction."^ If the railroad goes into the hands of a receiver, and the employe continues on in the service of the receiver, such contract remains in force For cases on this point, see Johnson v. Philadelphia, etc., R. Co. 163 Pa. St. 127; 29 Atl. Rep. 854; Hamilton v. St. Louis, etc., R. Co. 118 Fed. Rep. 92; Graft V. Baltimore, etc., Ry. Co. (Pa.) 8 Atl. Rep. 206; Chicago, etc., R. Co. V. Wymore (Neb.), 58 N. W. Rep. 1120; Ringle v. Pennsylvania R. Co. (Pa.) 30 Atl. Rep. 492; Chi- cago, etc., R. Co. V. Bell (Neb.), 62 N. W. Rep. 314; Johnson v. Railway Co. 55 S. C. 152; 32 S. E. Rep. 2; 44 L. R. A. 045; Beck V. Pennsylvania R. Co. (Pa.) 43 Atl. Rep. 908 ; 76 Am. St. Rep. 211 ; State V. Pittsburgh, etc., R. Co. 68 Ohio St. 9; 67 N. E. Rep. 93; 64 L. R. A. 405; 68 Ohio St. 9; Petty V. Brunswick, etc. R. Co. (Ga.) 35 S. B. Rep. 82; Pennsyl- vania R. Co. V. Chapman, 220 III. 428; 77 N. E. Rep. 248; Chicago, etc., R. C^. V. Healy, 76 Neb. 783 ; 107 N. W. Rep. 1005; 10 L. R. A. (N. S.) 198; Cliicago, etc., R. Co. V. Bigley (Neb.), 95 N. W. Rep. 341 ; Chicago, etc., R. Co. v. 01 sen, 70 Neb. 559; 97 N. W. Rep. 831; 99 N. W. Rep. 847; Walters v. Chicago, etc., R. Co. 74 Neb. 551; 104 N. VV. Rep. 1066: Baltimore, etc., R. Oo. V. Ray, 36 Ind. App. 430; 73 N. E. Rep." 042; Kinney v. Baltimore, etc., Assn. 35 W. Va. 385; 15 L. R. A. 142; 14 S. E. Rep. 8; Fivey v. Pennsylvania R. Co. (N. J.) 52 Atl. Rep. 472; 91 Am. St. Rep. 445; Harrison v. Alabama, etc., E. Oo. (Ala.) 40 So. Rep. 394; Cannaday v. A. C. L. 143 N. C. 439; 55 S. E. Rep. 836; 8 L. R. A. (N. S.) 939; Black V. Baltimore, etc., R. Co. 30 Fed. Rep. 655; Vickers v. Chi- cago, etc., R. Co. 71 Fed. Rep. 139; Hamilton v. St. Louis, etc., R. Co. 118 Fed. Rep. 92; Griffiths V. Earl of Dudley, 9 Q. B. 357; Clements v. Railroad Co. 2 Q. B. 482; State v. Pittsbvirgh, etc., R. Co. 68 Ohio St. 9; 67 N. E. Rep. 93; 64 L. R. A. 405. * Pittsburg, etc., R. Co. v. Moore, 152 Ind. 345; 53 N. E. Rep. 290; 44 L. R. A. 638; Baltimore, etc., R. Oo. v. Ray, 36 Ind. App. 430; 73 N. B. Rep. 942. RELEASE OF CLAIM FOR DAMAGES. 193 and applies to him if he be injured while in the employ of such receiver.^ But in all cases the contract to release the defendant must specifically provide that the acceptance of the relief money shall have that effect.® § 131. Constitutionality of Section five of this statute. — The Supreme Court of Connecticut has held that the sec- tion invalidating contracts releasing a railway company from liability for injuries to an employee is unconstitu- tional,*'* on the ground that "it denies them [employees] one and all that liberty of contract which the Constitution of the United States secures to every person within their jurisdiction." This decision has been severely criticised by several courts and in the report of the Judiciary Com- mittee of the United States Senate.''*' The power of a state legislature to enact a law of this kind has been before the United States Supreme Court and that power affirmed. A statute of the state of Iowa provided in effect that the receipt of relief insurance, benefit, or indemnity by an injured person or his heirs should constitute no bar or defense to an action for damage against a railway company under the statute declaring liability for the acts of fellow- servants in the use or operation of a railway. The com- pany maintained a railway relief department, of which the plaintiff was a member, and under the terms of his agree- ment was entitled to benefits payable in accordance with the regulations, the acceptance of which was to discharge the railway company from liability for damages. He re- ceived from the relief department benefits amounting to $822, v/hich the railway company contended was, under his 5 Baltimore, etc., R. Co. v. Ray, ea Hoxie v. Mew York, N. H. & 36 Ind. App. 430; 73 N. E. Rep. H. R. Oo. 82 Conn. 352; 73 Atl. 942. Generally, see Oyster v. Bur- 754. Mondon's case, 82 Conn. 373; lington, etc., Co. 65 Xeb. 789; 91 73 Atl. 762; reversed 32 Sup. Ct. N. W. Rep. 699; 59 L. R. A. 291 169. 6 Dover v. Mississippi, etc., R. eb^Congressional Record, 61st Co. 100 Mo. App. 330; 73 ,S. W. Congress 2d Session, March 22, Rep. 298; Sturgiss v. Atlantic, 1910, p. 2. See Appendix B. etc., R. Co. 80 S. C, 167; 60 S. E. Rep. 939; 61 S. E. 2&1. 194 FEDERAL EMPLOYERS' LLJlBILITY ACT. agreement, full satisfaction of the claim for which suit was brought. Under the regulations of the relief depart- ment it was provided that membership should be voluntary, and the amount of monthly contribution was fixed accord- ing to the wages received by the member. The railway company contended that the statute was an unwarranted interference with the liberty to make contracts and a denial of the equal protection of the laws, in violation of the pro- visions of the Fourteenth Amendment of the Constitution of the United States. The Supreme Court of Iowa held the statute was valid,*'° and from this decision an appeal was taken to the Supreme Court of the United States, which court affirmed the decision of the Iowa court. The follow- ing is a part of the opinion delivered by Justice Hughes: "We pass without comment the criticisms which are made of certain details of the relief plan, for neither the suggested excellence nor the alleged defects of a particular scheme may be permitted to determine the validity of the statute, which is general in its application. The question with which we are concerned is not whether the regulations set forth in the answer are just or unjust, but whether the amended statute transcends the limits of power as defined by the Federal Constitution. ' ' The first ground of attack is that the statute violates the Fourteenth Amendment by reason of the restraint it lays upon liberty of contract. This section of the Code of Iowa,°* as originally enacted, imposed liability upon railroad cor- porations for injuries to employees, although caused by the negligence or mismanagement of fellow-servants. And it was held by this court that it was clearly within the com- petency of the legislature to prescribe this measure of responsibility.*'" The statute in its original form also pro- ecMcGuire v. Chicago, B. & Q. Ct llTfi: 32 L. Ed. 109; affirming R. Co. 131 Iowa, 340; 92 N. W. 31 Minn. 11; 47 Am. Rep. 771; 402. IG X. W. 413; Missouri Rv. C6. v. 6d Section 2071. ^Vfrickey, 127 U. S. 205; 8 Sup. Ct. s-^^rinneapolis & St. L. Ry. Co. 1161; '32 L. Ed. 107; affirming V. Herrick, 127 U. S. 210; 8 Sup. 33 Kan. 298; 6 Pac. 291. RELEASE OP CLAIM FOR DAMAGES. 195 vided that *no contract which restricts such liability shall be legal or binding.' "Subsequent to this enactment the railroad company es- tablished its relief department, and the question was raised in the state court as to the legality of the provision then incorporated in the contract of membership, by which, in case of suit for damages, the payment of benefits was to be suspended until the suit should be discontinued, and the acceptance of benefits was to operate as a full discharge. The two principal contentions against it were, first, that it was against public policy, and second, that it was in violation of the statute. Both were overruled, and with reference to the statute it was held that the contract of membership did not fall within the prohibition for the reason that it did not restrict liability, but put the employee to his election.^^ The legislature then amended the section by providing expressly that a contract of this sort and the acceptance of benefits should not defeat the enforcement of the liability which the statute defined. "Manifestly the decision that the existing statute was not broad enough to embrace the inhibition did not prevent the legislature from enlarging its scope so that it should be included. Nor was the holding of the court final upon the point of public policy, so far as the power of the legislature is concerned. The legislature, provided it acts within its constitutional authority, is the arbiter of the public policy of the State. While the court, unaided by legislative decla- ration and applying the principles of the common law, may uphold or condemn contracts in the life of what is con- ceived to be public policy, its determination as a rule for future action must yield to the legislative will when ex- pressed in accordance with the organic law. If the legis- lature had the power to incorporate a similar provision in the statute when it was passed originally, it had the same «f Citing Donald v. Cliicago, B. & Q. R. Co. 109 Iowa, 260; 70 & Q. R. €o. 93 Iowa, 284; 61 N. W. 630; 80 N. W. 315. N. W. 971; ilaine v. Cbicago, B. 196 FEDERAL EMPLOYERS' LIABILITY ACT, power with regard to future transactions to enact the amendment. "It may also be observed that the statute, as amended, does not affect contracts of settlement or compromise made after the injury, and the question of the extent of the legis- lative power with respect to such contracts is not presented. The amendment provides, 'but nothing contained herein shall be construed to prevent or invalidate any settlement for damages between the parties subsequent to the injuries received.' As was said by the state court in construing the act: 'The legislature does not in this act forbid or place any obstacle in the way of such insurance, nor does it for- bid or prevent any settlement of the matter of damages with an injured employee fairly made after the injury is received. On the contrary, the right to make such settle- ment is expressly provided for in the amendment to Code section 2071. The one thing which that amendment was intended to prevent was the use of this insurance or relief for which the employee has himself paid in whole or in part, as a bar to the right which the statute has given him to recover damages from the corporation.' It is urged, however, that the amendatory act prohibits the making of a contract for settlement 'by acts done after the liability had become fixed.' The acceptance of benefits is, of course, an act done after the injury, but the legal consequences sought to be attached to that act are derived from the provision in the contract of membership. The stipulation which the statute nullifies is one made in advance of the injury that the subsequent acceptance of benefits shall constitute full satisfaction of the claim for damages. It is in this respect that the question arises as to the restriction of liberty of contract. "It has been held that the right to make contracts is embraced in the conception of liberty as guaranteed by the Constitution.**^ In AUgeyer v. Louisiana, supra, the court, "sAllgeyer v. Louisiana. 165 Ed. 832; Ijochner v. New York, U. S. 578; 17 Sup Ct. 427; 41 L. 198 U. S. 45; 25 Sup. Ct. 539; 42 RELEASE OF CLAIM FOR DAMAGES. 197 in referring to the Fourteenth Amendment, said: 'The lib- erty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties ; to be free to use them in all lawful ways ; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.' But it was recognized in the case cited, as in many others, that freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to con- tract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safe- guards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.'''^ 'It is within the undoubted power of government to restrain some indi- viduals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets ; to the minor the right to assume any obligations, except for the necessaries of existence ; to the common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any con- tract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally L. Ed. 937 ; Adair v. United States, Ed. 620 ; Jacobson v. Massachu- 208 U. S. 161; 28 Sup. Ct. 277; setts, 197 U. S. 11; 25 Sup. Ct. 52 L. Ed. 436. 358; 49 L. Ed. 643; affirming 183 6h Crowley v. Christensen, 137 Mass. 242; 67 L. R. A. 935; 66 U. S. 89; 11 Sup. Ct. 13; 34 L. N. E. 719. 198 FEDERAL EMPLOYERS' LLABILITY ACT. speaking, every citizen has a right freely to contract for the price of his labor, services, or property.' ®' "The right to make contracts is subject to the exercise of the poAvers granted to Congress for the suitable conduct of matters of national concern, as for example the regula- tion of commerce with foreign nations and among the sev- eral states. *'It is subject, also, in the field of state action, to the essential authority of government to maintain peace and security, and to enact laws for the promotion of the health, safety, morals and welfare of those subject to its juris- diction. ' ' The principle involved in these decisions is that where the legislative action is arbitrary and has no reasonable rela- tion to a purpose which it is competent for government to effect, the legislature transcends the limits of its power in interfering with liberty of contract; but where there is reasonable relation to an object within the governmental authority, the exercise of the legislative discretion is not subject to judicial review. The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. "Whether the enactment is wise or un- wise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, Avhether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are mat- ters for the judgment of the legislature, and the earaest conflict of serious opinion does not sul^ce to bring them within the range of judicial cognizance. "Here there is no question as to the validity of the regu- lation or as to the power of the state to impose the liability which the statute prescribes. The statute relates to that phase of the relation of master and servant which is pre- sented by the case of railroad corporations. It defined the el Frisbie v. United States, 157 U. S. 165; 15 Sup. Ct. 586; 39 L. YA. — . RELEASE OP CLAIM FOR DAMAGES. 199 liability of such corporations for injuries resulting from negligence and mismanagement in the use and operation of their railways. In the cases within its purview it ex- tended the liability of the common law by abolishing the fellow-servant rule. Having authority to establish this regulation, it is manifest that the legislature was also enti- tled to insure its efficacy by prohibiting contracts in deroga- tion of its provisions. In the exercise of this power, the legislature was not limited with respect either to the form of the contract, or the nature of the consideration, or the absolute or conditional character of the engagement. It was as competent to prohibit contracts, which on a specified event, or in a given contingency, should operate to relieve the corporation from the statutory liability which would otherwise exist as it was to deny validity to agreements of absolute waiver. "The policy of the amendatory act was the same as that of the original statute. Its provision that contracts of in- surance relief, benefit or indemnity, and the acceptance of such benefits, should not defeat recovery under the statute, was incidental to the regulation it was intended to enforce. Assuming the right of enforcement, the authority to enact this inhibition can not be denied. If the legislature had the power to prohibit contracts limiting the liability imposed, it certainly could include in the prohibition stipu- lations of that sort in contracts of insurance relief, benefit or indemnity, as well as in other agreements. But if the legislature could specifically provide that no contract for insurance relief should limit the liability for damages, upon what ground can it be said that it was beyond the legisla- tive authority to deny that effect to the payment of benefits, or the acceptance of such payment, under the contract? The asserted distinction is sought to be based upon the fact that under the contract of membership the employee has an election after the injury. But this circumstance, however, appropriate it may be for legislative consideration, cannot be regarded as defining a limitation of legislative 200 FEDERAL EMPLOYERS' LLVBILITY ACT. power. The power to prohibit contracts, in any case where it exists, necessarily implies legislative control over the transaction, despite the action of the parties. Whether this control may be exercised in a particular case depends upon the relation of the transaction to the execution of a policy which the state is competent to establish. It does not aid the argument to describe the defense as one of accord and satisfaction. The payment of benefits is the performance of the promise to pay contained in the contract of member- ship. If the legislature may prohibit the acceptance of the promise as a substitution for the statutory liability, it should also be able to prevent the like substitution of its performance. "For the reasons we have stated, the considerations which properly bear upon the wisdom of the legislation need not be discussed. On the one hand it is said that the relief de- partment is in the control of the corporation ; that by reason of their exigency the employees may readily be constrained to become members; that the relief fund consists in larger part of contributions made from wages ; that the accep- tance of benefits takes place at a time when the emploj'^ee is suffering from the consequences of his injury and, being seriously in need of aid, he may easily be induced to accept payment from the fund in which by reason of his contri- butions, he feels that he is entitled to share ; and that such a plan, if it were permitted through the payment of benefits to result in a discliarge of the liability for negligence, would operate to transfer from the corporation to its employees a burden which, in the interest of their protection and the safety of the public, the corporation should be compelled to bear. On the other hand it is urged that the relief plan is a beneficent scheme avoiding the waste of litigation, se- curing prompt relief in case of need due to sickness or injury, making equitable provision for deserving cases, ana hence tends in an important way to promote the good of the service and the security of the employment. Even a partial statement of these various considerations shows RELEASE OF CLAIM FOR DAMAGES. 201 clearly that they are of a character to invoke the judgment of the legislature in deciding, within the limits of its power, upon the policy of the state. And, whether the policy de- clared by the statute in question is approved or disapproved, it cannot be said that the legislative power has been ex- ceeded either in defining the liability or in the means taken to prevent the legislative will, with respect to it, from being thwarted. "The second ground upon which the statute, as amended, is assailed is that it constitutes a denial of the equal protec- tion of the laws. "It is urged that the prohibition of the amendatory act applies only to those employees of railroad corp'orations who were embraced within the provision of the original statute, and to the enforcement of the particular liabilities which that statute defined. The limitation to a particular class of employees of railroad corporations is based upon the decisions of the state court that the benefits of the original statute were confined to those who were engaged in the hazardous business of operating railroads.*^^ It is said that all employees of the plaintiffs in error may be- come members of the relief department and that the limited application of the amendment, as to the effect of the ac- ceptance of benefits under the membership contract, is an invalid discrimination, "It was, however, entirely competent for the legislature in enacting the prohibition, for the purpose of securing the enforcement of the liability it had defined, to limit it to those cases in which the liability arose. As the purpose of the amendment was to supplement the original statute, the classification was properly the same. And with respect to subsequent transactions the amendment must be regarded as having the same validity as it would have had if it had formed a part of the earlier enactment. No criticism on the ground of discrimination can successfully be addressed to ejDeppe v. Railroad. 36 Iowa, v. Eailway Co. 106 Iowa, 54; 75 52; Malone v. Railway Co. 65 N. W. 676. Iowa, 417; 21 N. W. 756; Akeson 202 FEDERAL EMPLOYERS LIABILITY ACT. the amendatory act which would not likewise impeach the statute iu its earlier form. "But the propriety of the classification of the original statute was considered and upheld by this court. And the validity of legislation abrogating the fellow-servant rule, both with respect to the class of cases embraced in the statute, and also where it is abolished as to railway em- ployees generally, has been sustained.*'^ In view of the full discussion of this subject in the recent decisions above cited, nothing further need be said upon this point. '*We find none of the objections which have been made to the validity of the amendatory act to be well taken, and the judgment is, therefor. "^^ The constitutionality of this statute has recently been sustained by the Supreme Court of the United States.°"^ 6k Minneapolis & St. Louis Ry. Co. V. Herrick, 127 U. S. 210; 8 Sup. Ct. 1176; 32 L. Ed. 100; affirming 31 IMinn. 11; 47 Am. Eep. 771; IG X. W. 413; Missouri Ey. Co. V. ilackey, 127 U. S. 205; 8 Sup. Ct. 1161; 32 L. Ed. 107; affirming 33 Kan. 298; 6 Pac. 291; Louisville & X. R. Co. v. Melton, 218 U. S. 36; 30 Sup. Ct. 376; 54 L. Ed. 921: Mobile, J. & K, C. R. Co. V. Turnipseed, 219 i:. S. 35; 31 Sup Ct. 130; 55 L. Ed. 78. 61 Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549; 31 ;Sup. Ct. 250; 55 L. Ed. 328. Tlie Supreme Court of Kansas has held tlie statute of that state on this subject valid. Kansas Pa- cific Ry. Co. V. Peavey, 29 Kan. 169; 44 Am. Rep. 630; Cliicago, R. I. &, P. Ry. Co. V. ]\Iartin, 59 Kan. 437; 53 Pac. 461: and one of the Federal Circuit Courts of Appeals has also held it valid. Weir V. Rountrec, 173 Fed. 776. That such statutes are valid, see Chicago, etc., R. Co. v. Mil- ler, 76 Fed. 439; Narramore v. Cleveland, C. C. & St. L. Ry. Co. 06 Fed. 298; San Antonio & A. P. Ry. Co. V. Tracey (Tex. Civ. App.), 130 S. W. 630; Xorfolk & W. Ry. Co. V. Dixie, 111 Va. 813; 69 S. E. 1106; Atlantic Coast Line V, Riversiide Mills, 219 U. S. 186; 31 S. C. 164; 55 L. Ed. 167; affirming 168 Fed. 090; Louisville & X. R. Co. V. Soott, 21Q U. S. 200; 31 Sup. Ct. 171; 55 L. Ed, 183. A Federal court has held the Ohio statute on this subject void. Shaver v. Pennsylvania Co., 71 Fed. 931, citing Cox v. Railroad Co. 1 Ohio X. P. 213; Vickers v. Chicago, B. & Q. R. Go. 71 Fed. 139. Those two cases have been sharply criticised. 31 Am. Law Rev. 460. Mondon v. Xew i'ork, etc., R. Co., 32 Sup. Ct. 169; reversing 82 Conn. 352, 373; 73 Atl. 754, 702. RELEASE OF CLAIM FOR DAMAGES. 203 The corresponding section of the Act of 1906 is very similar to that of the present Act of 1908. The Supreme Court of the District of Columbia held this section of 1906 valid, saying : ' ' The right to make all recoverable contracts is a property right, a right that w^as possessed both by the defendant and by the plaintiff. "They entered into this contract, and under it the de- fendant paid the benefits and the plaintiff accepted them, and we will assume that if it were not for the statute itself the acceptance of the benefits after injury would constitute a release of the plaintiff's damages; but the Congress has undertaken to say that such a contract is against sound public policy and shall not be recognized. Are there any grounds upon which the legislature could base such an enactment? More than once in its brief the defendant shows that the entering into of this contract by the plain- tiff was not only a part of his contract of employment, but was the condition of his being employed at all, and although the contract itself as elaborately set forth provides for certain preferences to be given those emplo3'"ees who be- come members of the relief benefit department, the de- fendant states, on page 15 of its brief, that all employees of the defendant are required to become members of the relief department as a condition of employment by that company. That is to say, every employee is required to agree upon a scale of benefits, so much for the loss of an arm, so much for the loss of an eye, so much for the loss of a life, and so on, which sums, if accepted by the employee or his representative, after the injury or death has occurred, shall constitute a bar to any action for the real damages. It is now said that no harm has been done by such a con- tract because the employee retained his option to accept or refuse the benefits after the injury has been received. During the oral argument the court asked the counsel for the defendant why the company exacted of its employees such an agreement in advance if it expected to rely only upon a voluntary acceptance of benefits after the injury 204 FEDERAL EMPLOYERS' LIABILITY ACT. and not at all upon the previous contract. The reply was that a question might arise as to the condition of the em- ployee at the time the benefits were accepted ; that it might be claimed that he was not then in a condition to make an intelligent decision, and in such a case the fact that he had agreed upon such benefits at the time of his employment and when he was in full possession of all his faculties would help to sustain the act of acceptance. May this not have been one of the reasons for the action taken by Congress? If it is necessary to come back to the original contract in order to sustain the act of acceptance, then it is necessary to come back to a contract which the Congress has clearly declared to be a contract made between parties who do not stand on a level, and one party to which is presumably subject to the undue influence of the other. "The real heart of the question is whether the circum- stances and situation are such that the lawmaking body has a right to say that the contract is made between parties, one of whom has presumably an undue advantage over the other. In the case at bar the plaintiff employee was re- quired to and did pay the sum of $2 per month into the relief department. lie alleges that he lost his arm, or a good part of it, through the negligence of the defendant. For that loss he received, according to the plea in bar, * * * $155 and an artificial arm, and this sum was due to him regardless of the question whether the company was negligent or not. On the other hand, of course, the com- pany had agreed to contribute toward the fund and guaran- teed the payment regardless of the question of its own negligence. The defendant has argued at length that these relief benefit contracts are of great advantage to the work- man, but evidently Congress thought otherwise, and if this case is a fair example of the returns to be received there will probably be many others who will share that view. "The fact should not be overlooked that although the em- ployee has the option to reject the relief benefit contract after he is injured, if he does so he forfeits what he has RELEASE OP CLAIM FOR DAMAGES. 205 paid under it. lie is not placed back where lie was at the beginning when he entered into the contract of employment. "The act, however, provides that while the amounts paid as relief benefits shall not bar the action they shall be credited to the defendant so far as they were contributed by the defendant, thus showing that Congress took note of the fact that the employee himself had contributed on his part to the relief benefit by the deductions from his wages, and intended that these shall not inure to the benefit of the defendant. "The Congress probably took notice of the fact that when the employee accepted the benefits he got nothing that he was not legally entitled to under the contract by which he became a member of the department. No new consideration passed to him. He was only ratifying the old contract which he entered into as a part of his employment. He was only exercising the option he had bought and paid for out of his wages. The consideration of his agreement was the contract of employment. The company said to him: 'We will not employ you at all unless you come into this depart- ment. If you do come into it you will be entitled to share its benefits.' Now Congress says: 'That is all right so far ; but the provision in the contract that the employee, by accepting those benefits which he has bought and paid for, shall bar himself from recovering his real damages is unfair and against sound policy and shall be void. What is re- ceived under such a contract shall relieve the company only so far as it ought to be relieved.' Can the court say there is no basis whatever for such a legislative decision? It is easy to see that it may be for the interest of the carrier to treat itself as liable in all cases of accident and injury to its employees, waiving the question of negligence, pro- vided the amounts to be paid for such injuries are suffi- ciently low, and it may appear when the average is struck that the carrier has made an immense saving. If Congress thought that these relief benefits and insurance contracts tended on the whole to relieve the common carrier of a 206 FEDERAL EMPLOYERS LL\BILITY ACT. large part of the burden which they ought to bear, and threw the burden upon the public, that may have been a good reason for the passage of the act. Before the court decides that the act has no sound rational basis it ought to look at all possible reasons that may have induced Congress to adopt it. What Congress evidently intended to do was to cut up, root and branch, this whole attempt on the part of the employer to substitute its own determination of its liability and its own adjustment of the extent of that lia-^ bility as far as the same were embraced in the original contract of employment, and to substitute for it an adjust- ment in open court, or, at least, an adjustment by the parties independent of such original contract. There is still an- other consideration that may have had weight v/ith Congress. That body has attempted to secure a greater degree of safety to railroad employees by requiring rail- roads to use certain safety appliances and to abstain from the use of certain other appliances, such as old-fashioned couplings which maim and kill large numbers of their workmen. If railroads can disobey such laws and turn themselves into insurance companies for the settlement of claims growing out of their violation of these laws, and fix the amounts to be paid at such rates as are shown by the plea in bar now under consideration, it may be very difficult to enforce such statutes at all. ' ' Liberty of contract is certainly a very valuable right, but it may not be hard to understand, in view of all these con- siderations, how Congress came to look upon the so-called liberty of contract between the employee and the employer as theoretical rather than real, and to conclude that an act like this would be really in favor of liberty rather than against it. This court cannot find it in its province to attempt to undo the work of the legislature in this humane acf^*" 8m Potter v. Baltimore & 0. R. Ooldenstein v. Baltimore & 0. R. Ck>. 37 Wash. Law Rep. 4G6; Co. 37 Wash. I>a\v Rep. 2; McNa- RELEASE OF CLAIM FOR DAMAGES. 207 § 132. Receipt of relief money. — The statute gives the defendant the right to set off "any sum it has contributed or paid to any insurance, relief benefit, or indemnity, that may have been paid to the injured employe or the person entitled thereto on account of the injury or death for which said action was brought." This is a defense and must be brought forward by plea by the defendant ; such a payment cannot be shown under the general denial any more than a settlement of the liability can be. After ascertaining the amount the plaintiff' would otherwise be entitled to recover, the jury deducts therefrom the amount the injured person has received and returns a verdict for the balance. The court cannot make the deduction. The defendant may set off any sum it has contributed or paid to any insurance, or relief benefit it has paid, and it may also set off the amount of any "indemnity that may have been paid to the injured employe or the person entitled thereto on account of the injury or death." It is the amount paid by the defendant that may be set off and also the amount the plaintiff has received for his injuries from any other source that may be set off. If the amount paid by the defendant has been deducted from his wages as they accrued, then the payment is not that of the de- fendant, but that of the plaintiff.'^ But the insurance or relief benefit must have been in force at the time of his injury, and he must have received pecuniar}^ benefit therefrom; the defendant must have paid money for the in- surance or benefit. Of course, money paid for the insurance mara v. Washington Terminal Co. of the section of this Act of 1908 35 App. D. C. 230; 3i8 Wash. Law now under discussion. Louisville Rep. 343. & N. R Co. v. Mottlev, 219 U. S. In quite a recent case the 467; 31 Sup. Ct. 265; 55 L. Ed. United States Supreme Court has 297. held that an existing valid con- In Zikos v. Oregon R. & X. Co. tract may be rendered invalid by 179 Fed. 893j it is said that this an act of Congress within its section can be eliminated and the power to enact under the inter- statute still stand, state commerce clause, and this " It is usually an enforced pay- would seem to settle the validity ment. 208 FEDERAL EMPLOYERS' LIABILITY ACT. or benefit by another common carrier cannot be deducted. !^roney received as an "indemnity" does not come from an outside source but has a connection with the defendant.^ S 133. Contract for future release not binding on bene- ficiaries. — Irrespective of whether or not the employe is bound by his contract of release for future damages, the beneficiaries are not bound thereby, because they are not parties to the contract. Such a contract is not for their bene- fit.^ This was held true where the deceased was a member of a relief association, and had agreed that the acceptance of the relief money should release his employer." But the pro- viso to Section five evidentlj' applies where the beneficiaries bring action for the death of the employe; and they will be bound by its provisions the same as the employee, except that if he be a member of a relief association and has not elected to accept the amount due therefrom, whereby his employer would be released, they would not be bound by any of its provisions, unless they elected to accept payment in accordance with the provisions of the contract. § 134. Release by beneficiary. — A release by the injured person in his lifetime and after his injuries of the defendant from its liabilities to him, or a settlement or the procuring of a judgment by him, is a complete bar to an action by his administrator." So a settlement or compromise by the ad- *It is clear that the word "in- Kering v. Pennsylvania R. Co. 65 demnity" does not cover the case N. J. L. 57; 40 Atl. Rep. 715. of ordinary life or accident insur- " Hecht v. Ohio, etc., R. Co. 132 anco. Ind. 507; 32 N. E. Rep. 302; Lit- " Adams v. Xorthern Pac. R. Co. tlewood v. Mayor, etc., Sfl N. Y. 05 Fed. 938; Illinois, etc., R. Co. 24, afiirming 15 J. & S. 547; Ried V. Cozby, 6!) 111. App. 250; ]\Ianey v. Great Eastern Ry. Co. L. R. V. Chicago, etc., R. Co. 49 111. App. 3, Q. B. 555; 37 L. J. Q. B. 278; 105; Strode v. St. Louis Transit IS L. T. (N. S.) 822; 16 W. R. Co. (Mo.) 87 S. W. Rep. 976. 1040; Dibble v. New York, etc., '"Cowen V. Ray, 47 C. C. A. R. Co. 25 Barb. 183; Southern, 452; 108 Fed. Rep. 320; Chicago, etc., Co. v. Cassin, 111 Ga. 575; etc., R. Co. V. Wymore, 40 Neb. 36 S. E. Rep. 881; Hill v. 645; 58 N. W. Rep. 1120; Mc- Pennsvlvania R. Co. 178 Pa. RELEASE OF CLAIM F()U DAMAGES. 209 ministrator is a bar to the action/- but not without an order of cGurt.^^ But neither the widow nor next of kin of the de- ceased can release the claim of the administrator.^* Yet a beneficiary may release so much of the amount as he or she would be entitled to.^^ And if there be but one beneficiary, he or she (and so all of them) may compromise the claim in full.^<' St. 223; 35 Atl. Rep. 997; 35 L. E. A. 196; 39 W. N. Cas. 221; Price V. Railroad Co. 3» S. C. 556; 12 S. E. Rep. 413i Brown v. Chattanooga Elec, R. Co. 101 Tenn. 252; 47 S. W. Rep. 415. But not if secured by unfair means. Price v. Richmond, etc., R. Co. 38 S. C. 199; 17 S. E. Rep. 732; Missouri, etc., Co. v. Brant- ley, 26 Tex. Civ. App. 11; 62 S. W. Rep. 94; Thompson v. Ft. Worth, etc., R. Co. 97 Tex. 590; 80 S. W. Rep. 990; Blount v. Gulf, etc., R. Co. (Tex. Civ. App.) 82 S. W. Rep. 305. The bringing of a suit by the deceased, undetermined at his death, is no bar to the adminis- trator's suit. International, etc., R. Co. V. Kuehn, 70 Tex. 582; 8 S. W. Rep. 484; Indianapolis, etc., R. Co. V. Stout, 53 Ind. 143. Evidence of the payment of the expenses of the deceased's sickness and of his funeral expenses is not admissible in evidence. Murray v. Usher, 117 N. Y. 542; 23 N. E. Rep. 564; 46 .xun, 404. ^^ Henchey v. City of Chicago, 41 111. 136; Hartigan v. Southern Pac. R. Co. 86 Cal. 142; 24 Pac. Rep. 851; Foot v. Great Northern R. Co. 81 Minn. 493; 84 N. W. Rep. 342; 52 L. R. A. 354; Balti- more, etc., R. Co. V. Holtman, 25 Ohio C. C. 140. 1* Pittsburg, etc., R. Co. v. Gipe, 160 Ind. 360; 65 N. E. Rep. 1034. Order is not necessary. Foot v. Great Northern R. Co. supra. A fraudulent release held void. Pisane v. Shanley, 66 N. J. L. 1; 48 Atl. Rep. 618. Before appor- tionment, is valid. Sluber v. Mc- Entee, 142 N. Y. 200; 47 N. Y. App. Div. 471; 63 N. Y. Supp. 580; affirmed, 164 N. Y. 58; 58 N. E. Rep. 4. "Yelton v. Evansville, etc., R. Co. 134 Ind. 414; 33 N. E. Rep. 629; Cleveland, etc., Ry. Co. v. Osgood, 36 Ind. App, 34;' 73 N. E. Rep. 285; Doweh v. Burlington, etc., Ry. Co. 62 Iowa, 629; Pitts- burg, etc., R. Co. V. Moore, 152 Ind. 345; 53 N. E. 290; 44 L. R. A. 638; South, etc., R. Co. v. Sul- livan, 59 Ala. 272 ; Knoxville, etc., R. Co. V. Acuff, 92 Tenn. 26; 20 S. W. Rep. 348 ; Pittsburg, etc., R. Co. V. Hosea, 152 Ind. 412; 53 N. E. Rep. 419; Oyster v. Bur- lington, etc., R. Co. 65 Neb. 789; 91 N. W. Rep. 699; 59 L. R. A. 291. ^■' Chicago, etc., Ry. Co. v. Wy- more, 40 Neb. 645; 58 N. W. Rep. 1120. ^^ Prater v. Tennessee, etc., Co. 105 Tenn. 496; 58 S. W. Rep. 1068; Small v. Kreech (Tenn.) 46 S. W. Rep. 1019; Stephens v. Nashville, etc., R. Co. 10 Lea, 448; Schmidt V. Deegan, 69 Wis. 300; 34 N. W. Rep. 83 ; Southern Pac. Co. V. Tomlinson, 163 U. S. 369; 16 Sup. Ct. Rep. 1171. CHAPTER VIII. IN WHAT COURTS SUIT MAY BE BROUGHT. SECTION 135. Plaintiff may bring suit in Federal court. Jurisdiction of state courts. Congress conferring jurisdic- tion on a state court. Removal of case to Federal court. Where actions must be brought. 130. 137. 138. 139. SECTIOX 140. Pleading. 141. Common carriers defined. 142. Statute of limitations. 143. Review on error. 144. Statute not retroactive. 145. State statutes requiring no- tice of injury to be given before bringing action. § 135. Plaintiff may bring suit in a federal court. — Section six as amended in 1910 provides that "under this Act an ac- tion may be brought in a Circuit Court of the United States/ in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several states, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States." ^ It will be noted that this statute says nothing about the amount in- volved. The action is a special one on the statute — a new cause of action, so far as the United States law is concerned, one that could not prior to this Act be enforced under a 1 The Judicial Code of the United States, approved March 3, 1911, abolished the circuit courts, and the powers and duties hereto- fore exercised and performed were transferred and imposed upon the United States district courts, and by Section 24 of Article 8, the district courts have jurisdiction 210 "of all suits and proceedings aris- ing under any law regulating com- merce, except those suits and proceedings of which exclusive jurisdiction lias been conferred ujwn the commerce court." 2 'See Appendix A for this amendment. IN WHAT COURTS SUIT MAY BE BROUGHT. 211 United States statute — and Congress having declared that under the act ' ' an action may be brought in a Circuit Court of the United States" intended and did by this declaration give jurisdiction to that court to bring an action "under this statute" regardless of the amount involved.' § 136. Jurisdiction of state courts. — In an action brought under this statute the Supreme Court of Connecticut had held that the courts of that state had no jurisdiction of a cause of action brought upon this Act.* But before the de- cision of the Connecticut Supreme Court a number of actions had been brought upon this Act in state courts, in some of which no question of jurisdiction was raised,^ and in others it was, and decided that a state court had juris- diction." This question came up in one of the circuit courts, 3 To the author this se«ms to be a reasonable interpretation of this section; but so far as he knows the question has not been decided. But it may be reasoned that by the attempt to confer jurisdiction on state courts, Con- gress intended only to limit the right of action in the Federal courts to instances where two thousand dollars or more are in- volved, and to provide a forum where cases below that amount could be tried. This amendment wag made because of the decision of the Supreme Court of Connecti- cut in Hoxie v. New York, N. H. & H. R. R. Co. 82 Conn. 352; 73 Atl. 754, holding that state courts had no jurisdiction of an action brought upon this statute, and, therefore, if that be true, an employee whose damages did not amount to two thousand dollars was without remedy. But it seems to the author that it was the in- tent of Congress to give the Fed- eral courts jurisdiction of all actions brought under this statute. regardless of the amount involved. Whether or not this act, by implication, repeals the statutory shipowners to limit their liability in so far as they might be used by a railroad company engaged in interstate commerce to limit its liability for injuries to employees on its vessels used in such com- merce, it does not deprive a court of admiralty of tlie general juris- diction over limitations of liability because such a claim is involved, nor of jurisdiction to hear and determine a claim on its merits therein with the consent of the claimant. The Passaic, 190 Fed. G44. •i Hoxie V. New York, N. H. & H. R. R. Co. 82 Conn. 352; 73 Atl. 754; reversed 32 Sup. Ct. 169. 5 Central of Georgia R. Co. v. Sims, 163 Ala. GG9; 53 So. 826. 6 Bradbury v. Chicago, R. I. & P. Ry. Co. 149 Iowa, 51; 128 N. W. 1; St. Louis, I. M. & S. Ry. €o. V. Hesterly, (Ark.); 135 S. W. 874. 212 FEDERAL EMPLOYERS* LLA.BILITY ACT. in a case removed to it from a state court, and the court held that a state court could entertain an action based wholly on this statute.*** "State courts," said Judge Whit- son, "enforce rights arising under the laws of the different states, applying the rule of lex loci contractus. They uphold rights arising in foreign nations which depend upon the constitution of foreign laws. Let it be admitted that this is through comity only, yet it would appear even then that the analogy ought to follow. But this is a stronger reason growing out of the more intimate relation of the states to the general government. The Constitution of the United States being the supreme law of the land, state and Federal courts are alike subject to its provisions, and the refusal of the former to enforce rights conferred by Congress, would put them in the same category as would a refusal to entertain causes flowing from any other recognized source of authority. It would be an anomaly in our system of state tribunals, after having so long enter- tained the grievances of litigants, where rights are traceable to Congressional legislation, should refuse to further do so because of the fact that there has been provided, by a power clearly competent, different rules of liability for those en- gaged in interstate commerce from those which may be fixed by statutes or recognized by decisions in the several states. All government rests upon acquiescence in the established order. Where common consent is withdrawn, prescribed rules of conduct are overthrown and anarchy reigns ; and it is not to be supposed that state courts will or can refuse to abide by the result when the Supreme Court, the final arbiter, has decided that they have juris- diction. If this should occur, the Constitution would cease to be the supreme law of the land, and its express pro- vision that 'the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the oaZikos t. Oregon R. & N. Co. 179 Fed. 893. IN WHAT COURTS SUIT MAY BE BEUUOHT. 213 contrary notwithstanding, ' would become null and its appli- cation inoperative. ' ' "^ "The general question," said Justice Bradley, "whether state courts can exercise concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws and treaties of the United States, has been elaborately dis- cussed, both on the bench and in published treatises some- times with a leaning in one direction and sometimes in the other; but the result of these discussions has, in our judg- ment, been, as seen in the above cases, to affirm the juris- diction, where it is not excluded by express provisions or by incompatibility in the exercise arising from the nature of the particular case. When we consider the structure and true relations of the Federal and state governments, there is really no just foundation for excluding the state courts from all such jurisdiction. The laws of the United States are laws of the several states, and just as much binding on the citizens and courts thereof as the state lavv^s are. The United States is n:t a foreign sovereignty as regards the several states, but is a concurrent and, within its jurisdic- diction, paramount sovereignty. Every citizen of a state is a subject of two distinct sovereignties, having concurrent jurisdiction in the states; concurrent as to place and person, though distinct as to subject-matter. Legal or 6i>"So, the holding in Hoxie v. "The legislature of a state can- New York, N. H. & H. R. R. Co. not abrogate or modify any of the 823 Conn. 732 ; 73 Atl. 754, that provisions of the Federal' Consti- it was not intended by Congress iution nor of the acts of Congress that the rights granted should be touching matters within congres- enforceable in tlie state courts, sional control; but tlie courts of cannot be followed for the reasons the state, in the absence of a pro- already assigned and for the addi- hibitory provision in the Federal tional reason that jurisdiction of Constitution or acts of Congress, the state courts is attributable to have full jurisdiction over cases the powers conferred upon them under the Constitution and lav/s of by the states. To defeat the exer- the United States." Murray v, cise of this power there must be Chicago & N. W. Ry. Co. 62 an express prohibition by Con- Fed. 24. gress." Zikos v. Oregon R. & N. Co. 179 Fed. 893, 214 FEDERAL EMPLOYERS' LIABILITY ACT. equitable rights acquired under either system of law, may be enforced in any court of either sovereignty, competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction. Thus a legal or equitable right acquired under the state laws may be prosecuted in the state courts, and also, if parties reside in different sates, in the Federal courts. So rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts, or in the state courts, competent to decide rights of the like character and class; subject, however, to this qualification, that, where a right arises under a law of the United States, Congress may, if it see fit, give to the Federal courts exclusive jurisdiction. This jurisdiction is sometimes exclusive by express enactment and sometimes by implication. If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its en- forcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize the two as operative wdthin the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two juris- dictions are not foreign to each other, so as to be treated by each other as such, but as courts of the same country, hav- ing jurisdiction partly different and partly concurrent. " "^^ The reasoning of this position is greatly supported by the many cases that have been brought in state courts to re- 6c Claflin V. Houseman. 93 U. S. v. Oliver, 97 Ala. 719; 12 So. 130; 23 L. Ed. 83, quoted with 238; 38 Am. St. 215; Wilcox v, approval in Bradburv v. Chicago Luco, 118 Cal. 642; 45 Pac. 676; & N. W. Ry. Co. 149 Iowa, 51; 50 Pac. 758; 62 Am. St. 306; 45 128 N. W. i. L. R. A. 582; Schuyler National On this point, see, also, Raislcr Bank v. Bollong, 24 Neb. S27 ; 40 IN WHAT COURTS SUIT MAY BE BROUGHT. 215 cover damages occasioned by a failure to equip cars with automatic couplers as Congress had required of railway companies engaged in interstate commerce, even though, provisions of the statute providing that an employee of such a company did not assume the risk of coupling cars not equipped as the statute required."^ § 137. Congress conferring jurisdiction on a state court. — The amendment of 1910 to Section six expressly declares that "The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several states." The wording of this amendment, N". W. 417; Bletz v. Columbia Nat. Bank, 87 Pa. 92; 30 Am. Eep. 345; Brinkerhoff v. Bostwick, 88 N. Y. 60; People v. Welch, 141 N. Y. 273; 36 N. E. 328; 24 L. R. A. 117; 38 Am. St. 793. 6ci See St. Louis, etc., Ry. Ct). v, Taylor, 210 U. S. 281; 28 Sup. Ct. Eep. '616; 52 L. Ed. 1061; Solilem- mer v. Buffalo, etc., Rv. Co. 205 U. S. 1 ; 27 Sup. Ct. "Rep. 407 ; 51 L, Ed. 681; reversing 207 Pa. St. 19«; 56 Atl. Rep. 417; Schlemmer v. Buffalo, etc., R. Co. 220 U. ,S. 500; 31 Sup. Ct. 561; 55 L. Ed. :59C; affirming 222 Pa. 470; 71 Atl. 1053. A numl)er of cases have been brouglit upon the Safety Appliance Act in state courts. Missouri Pac. Ry. Co. v. Brinkmeier, 77 Kan. 14; 93 Pac. Rep. 621; Southern Pac. R. Co. V. Allen (Tex. Civ. App.), 106 S. W. Rep. 441 ; Chicago, etc., Ry. Co. V. State (Ark.), Ill S. W. Rep. 456; Cleveland, etc., Ry. Cb. V. Curtis, 134 111. App. 565; Nichols V. Chesapeake, etc., Ry. Go. 32 Ky. L. Rep. 270 ; 105 S. W. 481; S2 Ky. L. Rep. 270; Mobile, etc. R. Co. V. Bromberg, 141 Ala. 258; 37 So. Rep. 395: Kansas City, etc., R. Co. v. Flippo, 138 Ala. 487; 35 So. Rep. 457; Geor- gia Pac. R. Co. v. Davis, 92 Ala. 307; 9 So. Rep. 253; 25 Am. St. Rep. 47. That state courts have jurisdic- tion is settled. Mondon v. N. Y., etc., R. Co., 32 U. S. Sup. Ct. 169. ]\Ir. Borali: "If the state court has jurisdiction in the matter, it could enforce the Federal law just the same as if it were a Federal court." 60 Cong. Rec, 1st Sesis., p. 4537. Mr. Dolliver: "But I do not hesitate to say that I understand that a citizen of Georgia can bring a suit in the state court of Geor- gia for the enforcement of his riglits under this act, and would remain in the state court of Geor- gia unless the defendant exercised his right under the judiciary act and transferred the controversy to the Federal court." 60 Cong. Rec, 1st Sess., p. 4548. Senate Report, No. 432 in the 6Ist Congress, 2d Session, March 22, 1910, contains an argument, backed by the citation of many cases and quotations therefrom, sliowing that the state courts have jurisdiction of cases brought under this statute. Appendix B. 216 FEDERAL EMPLOYERS' LIABILITY ACT. it would seem, proceeds upon the assumption that state courts had jurisdiction of actions brought under the Act and Federal courts did not (at least if the amount involved did not amount to two thousand dollars), and thereby it was sought to confer jurisdiction upon the Federal courts. But such is not the true interpretation of the statute, in the light of the debates in Congress, This amendment was made to confer jurisdiction upon state courts, because of the decision of the Supreme Court of Connecticut,^'' which was severely criticised and declared to be erroneous. The question is a very pertinent one, if a state court had no juris- diction of an action brought under this statute can Congress confer it? This question has not been specifically answered although it has been diseussed.^^ If we turn to a case of a state court granting a foreigner naturalization papers under the Federal statutes, we have an analogous instance of a state court acting under a Federal statute. It has been ex- pressly held that Congress can confer power upon state courts to hear and grant an application for naturalization papers, without an act of the state legislature authorizing it to assume jurisdiction under the Federal statute. By the Federal statute ''^ " a court of record of any of the states having common-law jurisdiction and a seal, and a clerk" is expressly authorized by Congress to naturalize qualified aliens, and to issue to them certificates of citizenship. The Constitution of the United States provides that Congress shall have power "to establish a uniform rule of naturaliza- tion * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing power, and all other powers vested by this Constitution in the gov- ernment of the United States or in any department or offices thereof," and that "this Constitution and the laws of the United States which shall be made in pursuance thereof * * * shall be the supreme law of the land, and eeHoxie v. New York, N. H. & 73 Atl. 762. H. R. R. Co. 82 Conn. 352; 73 fif Zikos v. Oregon R. & N. Co. Atl. 754. Mondon v. N. C. A. H. 170 Fed. 893. & H. R. Oo., 82 Conn. 373; eg R. S. Sec. 21^5. IN WHAT COURTS SUIT MAY BE BROUGHT. 217 the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."*"^ It is an axiomatic construction of the powers conferred by the Federal Constitution that the grant of power to do an act or to obtain an end is an implied grant of plenary authority to select and use the appropriate means to accomplish the purpose contemplated. It should be observed that the Constitution of the United States hav- ing granted Congress power over interstate commerce, such poAver (and such are the effect of the decisions), draws to Congress authority to select and use all appropriate means to enforce its provisions. In a case where the power of a state court to naturalize a foreigner was involved it was claimed that this act of a state court in hearing an application for and granting a naturalization certificate was void on two grounds: First, because Congress had no power under the Constitution to grant this power to a state court; and, second, because if it had the power, a court of common-law jurisdiction had no authority to accept or to exercise this power in the absence of state legislative per- mission so to do from the state which established it. In one case the court considered that as the statute on naturali- zation had been in force since 1790, had been universally acted upon by the courts and executive officers since that date without question of its validity, it was now too late to raise the question of its constitutionality. "Nor are the conclusions which contemporaneous construction, time, and practice have adopted without cogent reasons to sup- port them," said the court. "While it is true that Mr. Justice Story, speaking for the Supreme Court, declared in 1816 '^^ that the Congress had not vested any portion of the judicial power of the nation in courts which it did not itself ordain and establish, and this statement has since been repeated ; the fact is that he was then thinking and 6hArt. 1, Sec. 8, and Art. 6. 1 Wheat. 304, 328-333; 4- L. 6iln Martin v. Hunter's Lessee, Ed. 97. 218 FEDERAL EMPLOYERS' LIABILITY ACT. speaking of the judicial power granted by Section one ^^ and defined by Section two "^ of Article 2 of the Constitution. The better opinion now is that the judicial power granted by the former action, which may be vested in the national courts only, is defined in the latter section ; that it necessarily extends only to the trial of 'all cases in law and equity arising under this Constitution,' and to the trial of the other nine classes of cases named in Section two, and speci- fied by Chief Justice Jay in his opinion in Chisholm v. Georgia; '^^ and that these sections neither expressly nor im- pliedly prohibit Congress from conferring judicial power upon other courts, or upon executive or other officers, in other cases where, in its opinion, the devolution of such power is either necessary or convenient in the execution of the authority granted to the legislative or to the executive department of the government through the Constitution. Through the authority granted to the territorial courts to have and determine controversies arising in the territory of the United States is judicial power. But it is not a part of the judicial power granted by Section one, and defined by section two, of article three of the Constitution. Neverthe- less, under the constitutional grant to Congress of power to 'make all needful rules and regulations respecting the 6j "The judicirJ power of the States shall be a party; to con- United States shall be vested in troversies between two or more one Supreme Courtj and in sach states, between a state and citizens inferior courts as the Congress of another state, between citizens may, from time to time ordain of different states, between citizens and establish." of the same state claiming lands 6k "The judicial power shall ex- under grants of different states, tend to all cases, in law and and between a state or the citizens equity, arising under this Consti- thereof, and foreign states, citizens tution, the laws of the United or subjects." States, and treaties made, or which 612 ball. 419, 475; 1 L. Ed. 440. shall be made, under their author- The court also cited Ex parte ity; to all cases affecting ambas- Gist, 26 Ala. 156, 162; C'laflin sadors, other public ministers, and v. Houseman, 93 U. S. 130, 139; consuls; to all cases of admiralty 23 L. Ed. 833; and Robertson v. and maritime jurisdiction; to con- Baldwin, 165 U. S. 275, 279; 17 troversies to which the United Sup. Ct. 326; 41 L. Ed. 715. IN WHAT COURTS SUIT MAY BE BROUGHT. 219 territory * * * belonging to the United States, ' •'"' the body may create territorial courts not contemplated nor authorized by article three of the Constitution, and may con- fer upon such courts and the bestowal of such authority constitutes appropriate means by which to exercise the Con- gressional power to make needful rules respecting the terri- tory belonging to the United States.*'^ Of the same nature is the judicial power conferred upon the Secretary of the Interior, the Commissioner of the General Land Office, and his subordinate officers, to hear and determine claims to the public lands of the nation ; ^° that bestowed on justices of the peace and other magistrates of the state by Act September 24, 1789,^^ to arrest and commit to jail persons charged wath a violation of the criminal laws of the United States ; *"^ that conferred upon the state courts to hear and determine suits by or against corporations and officers created by the nation ; "^ that gives to magistrates of any county, city or town corporate, to hear, determine, and certify the claims of owners of fugitive slaves ; ®^ that be- stowed upon justices of the peace to arrest, commit to jail, and deliver to the masters deserting seamen ; "* that con- ferred upon the courts of the state by the various acts of Con- gress Avhich empower them to naturalize aliens ; ®^ and that 6m Article 4, Sec. 3. 38 Claflin v. Houseman, 93 U. S. en Citing American Ins. Co. v. 135; 23 L, Ed. 833. Canter, 1 Pet. 511, 54-4; 7 L. Ed. «s Under Act February 12, 17t)3, 242; Clinton v. Englebrecht, 13 Chap. 7, 1 U. S. Stat, at L., 302, Wall. 434, 447; 20 L. Ed. 659; Sec. 3; Prig-g v. Pennsylvania, 16 McAllister v. United States, 141 Pet. 536, 615, 620, 621;' 10 L. Ed. U. S. 174, 184; 11 Sup. Ct. 949; lOGO. 35 L. Ed. 693. et Under Act July 20, 1790, 60 Citing United States v. Win- Cliap. 29; 1 U. iS. Stat, at L., ona & St. P. K. Co. 67 Fed. 948, 131, 134; Pvobertson v. Baldwin, 957; 15 C. €. A. 96, 104. 165 U. S. 275, 277, 280; 17 Sup. epl U. S. Stat, at L., Cbap. 20, Ct. 326; 41 L. Ed. 715. Sec. 33. 6ul Stat. 103, 414; 2 Stat. 153, sqEx parte Gist, 26 Ala. 156, 155; Pea-. Stat., Sec. 2165; Robert- 164. son V. Baldwin, 165 U. S. 275: 17 erBank of the United States v. Sup. Ct. 326; 41 L. Ed. 715; Deveaux, 5 Cranch, 61 ; 3 L. Ed. Claflin v. Houseman, 93 U. S. 130, 220 FEDERAL EMPIiOYERS ' LIABILITY ACT. granted by acts of Congress to executive officers of the United States and to courts and magistrates of the states in numerous other instances, not to try and determine the cases specified in section two of article tliree of the Con- stitution, but to perform the judicial function of hearing and determining other questions and issues which a proper exercise of the powers granted to the various departments of the government require to be thus decided. The grant by the Congress of the United States of the judicial power to admit aliens to citizenship, and to hear and decide the various questions which do not arise in the cases specified in article three of the Constitution, but which a proper exercise of the powers granted by that instrument to the executive or to the legislative department of the govern- ment requires to be judicially decided, was neither expressly nor impliedly prohibited by that article. The Congressional power to make such a grant, and to vest judicial authority in state courts and officers, in such case, exists by virtue of the established rule that the grant of a power to accom- plish an object is a grant of the authority to select and use the appropriate means to attain it." The court then pro- ceeds to discuss the question whether it is necessary for a state legislature to authorize a state court to proceed under the Federal statute where Congress has extended to it au- thority to act, and reaches the conclusion that it is not.®"^ "When the United States," said the court, "offered admis- sion to the Union to the people of IMissouri [where the case arose], it made this offer subject to the potent condition that the Constitution of the United States and the laws that had been made and should be made by Congress in accord- ance with its provisions, should become the supreme law 140; 23 L. Ed. 83; Tn re Connor, tlivat this pi-oliibition would be 39 Cal. 98, 101; 2 Am. Rep. "127. fatal to tho devolution of the con- 8v "The sufrgestion is noted that grossional authority." But no such the loprislature of a state might inhibition having boen imposed, prohibit its courtis from exercising the court refused to discuss it. the power of naturalization, and IN WHAT COURTS SUIT MAY BE BROUGHT. 221 of the new state, binding alike upon all its inhabitants, whether laymen or lawyers, citizens or judges. The people of Missouri accepted the offer and its condition, and became a part of the nation. Thereupon the Constitution of the United States, and the laws enacted in accordance with, which then conferred upon the courts of the states the judi- cial power to admit aliens to citizenship, became a part of the supreme law of the new state of Missouri, which the peoi>le of that state, by their acceptance of the offer of admission, had contracted should be obeyed and executed by the citizens, the judges, and the courts of this state. The acceptance by the people of Missouri of this offer of admis- sion, in view of the power which had been granted by the Congress to certain courts of the states to admit aliens to citizenship, and in view of the practice of those courts to exercise this jurisdiction, which had prevailed for nearly three decades, gave to the courts of Missouri plenary juris- diction to exercise any power to admit aliens to citizen- ship which the Congress had then conferred or might thereafter bestow upon them under the provisions of the Constitution applicable to that subject.^^ The resistless con- clusion is that the Congress of the United States was by section eight, article one, of the Constitution, granted the necessary authority to vest in the courts of the states having common law jurisdiction the judicial power to admit quali- fied aliens to citizenship ; that, in the absence of legislative authority or permission from the states which created them, such courts may lawfully exercise this power, and that Section 2165 of the Revised Statutes is neither unconstitu- tional nor invalid." ^^ ew Claflin v. Houseman, 93 U. S. ex Levin v. United States, 128 130, 136-142; 23 L. Ed. 833; Fed. 826; 63 C. C. A. 476. For Ex parte Gist, 26 Ala. 156, 164; an action on this statute in a state Prigg V. Pennsylvania, 16 Pet. 536, court, see Horton v. Seaboard Air 620; 10 L. Ed.' 1060; Robertson v. Line Ey. Co. (N. C.) 72 S. E. Baldwin, 165 U. S. 275, 280; 17 958. This question :s now settled. Sup. Ct. 326; 41 L. Ed. 715. Mondon v. N. Y., etc., R. Co., 39 Sup. Ct. 169. 222 FEDERAL EMPLOYERS' LIABILITY ACT. § 138. Removal of case to Federal Court. — Before the ameudment of 1910, cases brought in a state court could be removed to a Federal court, if there was diverse citizen- ship '^y or there was involved a construction of the statute. But now by the provisions of the statute as amended in 1910, a case arising under this Act and brought in any state court of competent jurisdiction can only be removed to a court of the United States, where a diverse citizenship exists between the plaintiff and defendant. In such an instance it can be removed.^^ § 139. Where actions must be brought. — The statute ex- pressly declares, as amended in 1910, wiiere the action must be brought, viz.: "In a Circuit [now District] Court of the United States, in the district of the residence of the defend- ant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action." When the action is brought in a Federal court the plaintiff has his option of three places Avliere he may bring it, viz.: (1) in the district of the residence of the defendant; (2) or in which the cause of action arose; (3) or in which the defendant shall be doing business at the time of commencing the action. So far there is no difficulty. But where shall the action be brought if brought in a state court? Here resort must be had to the state stat- utes in order to answer that question. Congress has not undertaken to answer it. The law applicable in this respect to a cause of action is the same as that applicable to any other cause of action brought against the same defendant. If sued in a Federal court outside of the district designated above, the defendant may object, and file a plea in abate- ment.®^ eyMillor v. Illinois Central R. ezz Bottoms v. SI. Louis & S. F. Ck). 108 Fed. 982; Clark v. South- Ry. Co. 179 Fed. 318; Conrad v. ern Pacific Ry. Co. 175 Fed. 122. Atchison, T. & S. F. Ry. Co. 173 erVan Brimmer v. Texas & P. Fed. 527; Smith v. Detroit & T. Ry. Co. 190 Fed. 394. S. L. R. a>. 176 Fed. 506. IN WHAT COURTS SUIT MAY BE BROUGHT. 223 § 140. Pleading. — It is not necessary to plead the act in order to show that the action is based upon it; nor is any reference to the provisions of the act necessary. It is suffi- cient if the complaint show that the defendant and the em- ploye were both engaged in interstate commerce at the time he received his injury; and when that is done the court will measure the plaintiff's right to recover and the defendant's liability for damages hy the terms of the statute. It has been suggested that if the declaration or complaint does not disclose whether the action is based upon the statute or not — or whether it is grounded upon the statute or the general law of negligence — it is demurrable on the ground that no cause of action is stated. But this position is un- tenable. The question of the jurisdiction of a Federal Court is always present throughout the entire proceedings, except v/here there has been a waiver over the person. It may be presented at any time. While its jurisdiction is general in one sense of the word, in another it is limited. The true rule is that if the declaration or complaint does not disclose the action is based or grounded upon the statute, then the plaintiff is not seeking to recover for an injury received while engaged in the interstate traffic of the defendant and the sufficiency of his pleading must be measured by the general state law, the provisions of the statute not being involved. However, if the evidence discloses the case is one under the statute there will be a fatal variance and the plaintiff must fail.'' 7 This section was approved in Ry. Co. 173 Fed. 527. It should Missouri, K. & T. Ey. Co. v. Haw- show that the plaintiff and de- ley (Tex. Civ. App.) 123 S. fendant were engaged in interstate W. 726. commerce at the time of the in- Where the petition alleges a jury. The precise nature of the cause of action under this statute defect causing the injury need not it will be so construed, though it be shown. Norfolk & W. R. Co. does not mention tlie act or state v. Hazelrigg, 184 Fed. 828; 107 that the action is intended to be C. C. A. 66. brought thereunder. Smith v. De- In one case in Texas it has troit & T,, S. L. R. Co. 175 Fed. been held that whether the defend- 506 ; Cound v. Atchison, T. & S. F. ant was engaged in interstate com- 224 FEDERAL EMPLOYERS' LIABILITY ACT. § 141. Common carriers defined — Receivers. — The stat- ute applies to "every common carrier by railroad while engaging in" interstate commerce and in the territories. The statute also provides that: "The term 'common carrier' as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier. ' ' ^ § 142. Statute of limitations. — "No action shall be main- tained under this act unless it commenced within two years from the day the cause of action accrued. " ° At what time "the cause of action accrued" is the turning-point under this section. So far as the employee is personally concerned, there is no difficulty ; for his cause of action accrues on the day he is injured. The difficult question is when he dies from his injuries, — when does the right of action in the administrator accrue? Clearly, at least, at the death of the employee. But did not it accrue before that time, — at the date of the injurj^? The weight of authority is that the administrator's right of action is a new and independent cause of action, and therefore, his cause of action did not accrue until the death of the injured employee. § 143. Review on error. — If the action be brought in the United States District Court, any judgment rendered therein may be reviewed in the Circuit Court of Appeals on a w^rit of error as in ordinary cases ; and from the Court of Appeals the case may be taken on a writ of error to the Supreme Court of the United States. If the constitu- merce or intrastate commerce at 123 S. W. 72'6. In this case facts the time of the injury being pecu- were so alleged as to show the liarly within its knowledge, the action was by an intrastate em- plaintiff is not requirfd to allege ployee against an interstate rail- such fact with that coi-tainty re- way company. quired as to facts within his own «. Section 7 of the Act. knowledge, :^f^ssouri, K. & T. Ry. 8 Section 6 of Act. Co. V. Hawley (Tex. Civ. App.) ; IN WHAT COURTS SUIT MAY BE BROUGHT. 225 tionality of the statute be involved, then a writ of error direct from the Federal Supreme Court to the United States Circuit Court of the district which rendered the judgment lies, no matter how decided, or where a state law upon the subject is claimed to be in contravention of the Federal Constitution or the Federal Act in question, or where the jurisdiction of the Federal Court is drawn in question. If the action is prosecuted in a state court then the judgment may be reviewed by the Supreme Court on a writ of error issued by it to the court of last resort in the state in the fol- lowing instances : (1.) "Where each court of last resort holds the Act invalid. (2.) Where such court holds a state stat- ute valid which the plaintiff has relied upon, but which the defendant has attacked on the ground that it contra- venes the Federal constitution. (3.) Where the judgment of such court is adverse to a right, privilege or immunity specially set up and claimed by either plaintiff or defend- ant under the Federal constitution or Federal law. (a) An example in the first instance would be where the plaintiff has relied upon the Federal Act in question and the de- fendant has not removed the case to the Federal Court, but has contested its validity in the state court, (b) An ex- ample under the second instance is where the plaintiff seeks to recover under a state statute which the defendant claims to be superseded by the Federal Act in question and where the court holds the State Act is not superseded by such Federal Act and allows a recovery under the state law. (c) An example in the third instance is where an immunity from liability has been set up under the Fiftii or Seventh Amendments to the Federal Constitution and the state court has sanctioned the validity of the Federal Act ; or where the defendant has specially set up and claimed a right or immunity under such Federal Act and that right or immunity has been denied by the state court. The bur- den is upon the party desiring to secure a right to review a state court judgment in the Federal Supreme Court to put clearly upon the record of the state courts the partic- 226 FEDERAL EMPLOYERS' LIABILITY ACT. Tilar right or immunity claimed by him under the Federal Constitution or the Federal Act. § 144. Statute not retroactive. — The statute in question is prospective, not retroactive. It does not give a remedy for an injury sustained before its enactment.^" § 145. State statutes requiring notice of injury to be given before bringing action. — A state statute which re- quires notice of an injury be given defendant before the action to recover damages therefor, has no application to an action under this statute.^^ 10 254 Stat, at Large, 826. The etc., R. Co. 149 Fed. Rep. 564; following cases caji be consulted: Winfree v. Northern Pac. Ry. Co, Osborn v. Detroit, 32 Fed. Rep. 164 Fed; Rep. 698 (decision on 36 ; Eastman v. County of Clack- this statute ) ; Winfree v. Northern mas, 32 Fed. Rep. 24; Humboldt, Pacific Ry. 173 Fed. 65; affirming etc., Ct). V. Christopherson, 73 164 Fed. 6i98 (decision on the Fed. Rep. 239 ; Wright v. Southern statute ) . Ry. Co. 80 Fed. Rep. 260; Plum- n El Paso & N. E. Ry. Co. v. mer v. Northern Pac. Ry. 152 Gutierrez, 215 U. S. 87; 30 Sup. Fed. Rep. 206; Hall v. Chicago, Ct. 21; 54 L. Ed. — . PART 11. Safety Appliance Acts. CHAPTER IX. ORIGIN, OBJECT, CONSTITUTIONALITY AND INTER- PRETATION OF STATUTE. SECTION SECTION 146. Origin of Safety Appliance 148. Object of statute. Act. 149. Constitutionality of statute. 147. Resolution of American Rail- 150. Interpretation of statute. way Association. 150a. State legislation concerning safety appliances. § 146. Origin of Safety Appliance Act. — The origin of the Safety Appliance Act was largely due to President Har- rison, who repeatedly urged its passage upon Congress, both in public messages and privately upon individiial congress- men. In his first annual message to Congress on December 3, 1889, he used this language : ' ' The attention of the Inter- state Commerce Commission has been called to the urgent need of congressional legislation for the better protection of the lives and limbs of those engaged in operating the great interstate freight lines of the country, and especially of the yardmen and brakemen. A petition, signed by nearly ten thousand railway brakemen, was presented to the commission asking that steps might be taken to bring about the use of automatic brakes and couplers on freight trains. At a meet- ing of state railroad commissioners and their accredited rep- resentatives, held at Washington in March last, upon the invitation of the Interstate Commerce Commission, a resolu- tion Avas unanimously adopted urging the commission 'to consider what can be done to prevent the loss of life ajid limbs in coupling and uncoupling freight cars and in hand- ling the brakes of such cars.' During the year ending June 30, 1888, over two thousand railroad employes were killed in service, and more than twenty thousand injured. It is com- 229 230 FEDERAL SAFETY APPLIANCE ACT. petent, I think, for Congress to require uniformity in the construction of cars used in interstate commerce and the use of improved safety appliances upon such trains. Time will be necessary to make the needed changes, but an earnest and intelligent beginning should be Jnade at once. It is a re- proach to our civilization that any class of American work- men should, in the pursuit of a necessary and useful vocation, be subject to a peril of life and limb as great as that of a soldier in time of war. " ^ In his annual message of December 1, 1890, President Harrison again said: "It may still be possible for this Congress to inaugurate, by suitable legisla- tion, a movement looking to uniformity and increased safety in the use of couplers and brakes upon freight trains engaged in interstate commerce. The chief difficulty in the way is to secure agreement as to the best appliances, simplicity, ef- fectiveness and cost being considered. This difficulty will only yield to legislation, which should be based upon full in- quiry and impartial tests. The purpose should be to secure the co-operation of all well disposed managers and owners; but the fearful fact that every year's delay involves the sacri- fice of two thousand lives and the maiming of twenty thou- sand young men should plead both with Congress and the managers against any needless delay. " - In his annual mes- sage of December 9, 1891, he again said: "I have twice before urgently called the attention of Congress to the neces- sity of legislation for the protection of the lives of railroad employes, but nothing has yet been done. During the year ending June 30, 1890, 369 brakemen were killed and 7,841 maimed while engaged in coupling cars. The total number of railroad employes killed during the year was 2,451, and the number injured 22,390. This is a cruel and largely needless sacrifice. The government is spending nearly $1,000,000 an- nually to save the lives of shipwrecked seamen ; every steam vessel is rigidly inspected and reciuired to adopt the most ap- proved safety appliances. All this is good. But how shall * Messages and Papers of Presi- ^Messages and Papers of the dents, Vol. •), p. 51. Presidents, Vol. 9, p. 126. ORIGIN, OBJECT, ETC., OF STATUTE, 231 we excuse the lack of interest and effort in behalf of this army of brave young men who in our land commerce are sacrificed every year by the continued use of antiquated and dangerous appliances? A law requiring of every railroad engaged in interstate commerce the equipment each year of a given per cent, of its freight cars with automatic couplers and air brakes would compel an agreement between the roads as to the kind of brakes and couplers to be used, and would very soon and very greatly reduce the present fearful death rate among railroad employes." ^ In his final annual mes- sage of December 5, 1892, he again alluded to the subject as follows : "In renewing the recommendation which I have made in three preceding annual messages that Congress should legislate for the protection of railroad employes against the dangers incident to the old and inadequate methods of brake- ing and coupling which are still in use upon freight trains, I do so with the hope that this Congress may take action upon the subject. Statistics furnished by the Interstate Commerce Commission show that during the year ending June 30, 1891, there were forty-seven styles of car couplers reported to be in use, and that during the same period there were 2,660 em- ployes killed and 26,140 injured. Nearly sixteen per cent, of the deaths occurred in the coupling and uncoupling of cars and over thirty-six per cent, of the injuries had the same origin."* As a result of these messages, President Harri- son, on March 2, 1893, two days before the expiration of his term of office, had the satisfaction of realizing the fruition of his recommendations and endeavors, and in signino- the present Safety Appliance Act. On April 1, 1896, Section 6 ^Messages and Papers of the ling, the demand for protection, Presidents, Vol. 9, p. 208. and the necessity of automatic * Messages and Papers of the couplers coupling interchangeably. Presidents, Vol. 9, p. 331. See Johnson v. Southern Pacific Co. also Senate Report of the First 196 U. S. 1 ; 25 Sup. Ct. Rep. 158. Session of the 52nd Congress (No. For debates in Congress on the 1049) and the House Report of Safety Appliance Act, see 24 the same session (No. 1678), set- Cong. Rec, pt. 2, pp. 1246, 1273, ting out the numerous and in- et seq. creasing casualties due to coup- 232 FEDERAL S.Ui^ETY APPLIANCE ACT. of the act was amended; and on March 2, 1903, a supple- mentary act was adopted.^ § 147. Resolutions of American Railway Association.— On June 6, 1893, the American Railway Association, pursuant to the provisions of Section 5, adopted and certified to the Interstate Commerce Commission the following resolutions, viz: (1) ''Resolved, That the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the center of the draw bars, for standard gauge railroads in the United States, shall be thirty- four and one-half inches, and the maximum variation from such standard heights to be allowed between the draw bars of empty and loaded cars shall be three inches. " (2) Resolved, That the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for the narrow gauge rail- roads in the United States, shall be twenty-six inches, and the maximum variation from such standard height to be allowed between the draw bars of empty and loaded cars shall be three inches." ® § 148. Object of statute^Construction.— It is clear that the intention of Congress in the passage of the Safety Appliance Act was to, in a measure secure the safety of "Tlie act provided that auto- provision of tlie Federal statute, matic couplers should be used on authorizing the American Railway and after January 1, 1898, but Association to fix the height of the Interstate Commerce Commis- drawbars, is constitutional, and sion ext^'nded the time two years, ^^at the action of that association and suljsequentlv seven months ^^ "^^lid and binding on interstate longer. Johnson v. Southern Pa- railway companies. St. Louis, I. cific Co., supra ^^- ^ '^- ^y- ^'°- ^- ^^^^' ^^ ^'■^• « Interstate Commerce Report, 501 ; 98 S. W. 958. For a history 1893, pp. 74, 263. St. Louis, of this case (which was affirmed, t>tn Ti^T Or. „ To„i^, oio TT o '^<^- Louis, I. M. & S. Ry. Co. v. o«;' Sfi 9« Q^n.' I «-!« Taylor, 2io U. S. 281; 52 L. Ed. S 't Fd inar 7^^- aJ 10«1= 28 Sup. Ct. 616), see Chi- 52 L. Ld. 1061; s. c. 74 Ark. ^ t >v t> -^ tt -i. ^ 445; 78 S. W. Rep. 220; 83 Ark. Z^' ^Jt?-^\S''\^-^ nl nm oa Q \kt -dS. oko States, 220 U. S. 5o9; 31 Sup. Ct. 591; 98 S. W. Rep. 959. ^^ A state court has held that the ORIGIN, OBJECT, ETC., OF STATUTE. 233 employees of railroads in moving cars in interstate com- merce.'^ "Obviously the purpose of this statute is the pro- tection of the lives and limbs of men, and such statutes, when the words fairly permit, are so construed as to prevent the mischief and advance the remedy."* "The obvious purpose of the legislature was to supplant the qualified duty of the common law with the absolute duty deemed by it more just. "*^ "The law was intended to protect the lives and safety of all employees, whether they are reason- 7 United States v. Southern Pa- cific Oo. 154 Fed. Rep. 897; Crawford v. New York, etc., R. Co. 10 Amer. Neg. Rep. 106; United States v. Southern Ry. Co. 135 Fed. Rep. 122; St. Louis & S. F. R. €o. V. Delk, 86 C. C. A. 9'5; 158 Fed. 9.31; 14 Amer. and Eng. Ann. Cas. 233. Referring to the opinion in this case just cited, although reversing it, the Supreme Court of the United States said: "The Circuit Court of Appeals well said, in the present case, that while the general purpose of the statute was to promote the safety of employees and travelers, its immediate purpose wasi to provide a particular mode to effect that result, namely, tlie equipping of each car used in moA'ing inter- state traffic with couplers, coupling automatically by impact and which can be uncoupled without the neces- sity of men going between the ends of tlifi cars." Delk v. St. Ix)uis & S. F. R. Co. 220 U. S. 580; 31 Sup. Ct. 617; 55 L. Ed. 590. 8 Chicago, etc., R. Oo. v. Voel- ker, 129 Fed. Rep. 522; 65 C. C. A. 65; 70 L. R. A. 264; Sohlem- mer v. Buffalo, etc., R. Co. 205 U. S. 1; 27 Sup. Ct. Rep. 407; 51 L. Ed. 681; reversing 207 Pa. St. 398; 56 Atl. 417; Atlantic Coast Line R. Co. v. United States, 168 Fed. Rep. 175 (decided March 1, 1909) ; Wabash R. Co. v. United States, 168 Fed. Rep. 1 (decided February 3, 1909) ; Southern Ry. Co. V. Snyder, 187 Fed. 492; United States v. Illinois Cent. R. Oo. 177 Fed. 801. "I do not know whether statis- tics are obtainable as to whether the judgments obtained against and expense incurred by the com- panies were greater than those incurred in putting on the auto- matic coupler. But aside from all that, an undoubted purpose of Congress was humanitarian. The purpose was to end the maiming and killing of the vast army of men engaged in railroad work. And that the results have been good one now needs but look at the court dockets and the men newer in the railroad service and read the statistics of the past few years." United States v. Chicago, etc., Ry. Co. 149 Fed. Rep. 486. saSt. Louis, I. M. Ry. Co. v. Taylor, 210 U. S. 281; 28 Sup. Ct. 61«; 52 L. Ed. 1001; Johnson v. Great Northern Ry. Co. 178 Fed. 643; Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559; 31 Sup. Ct. 612; 55 L. Ed. 582. 234 FEDERAL SAFETY APPLIANCE ACT. ably prudent or not."^'' "The Safety Appliance Act is a remedial statute, and must be so construed as to accomplish the intent of Congress. Its provisions 'should not be taken in a narrow sense.' Nor should its undoubted humanitarian purpose be frittered away by judicial construction."^^ § 149. Constitutionality of statute.— There is no serious question concerning the constitutionality of the Safety Appli- ance Act. It has been expressly held to be constitutional.^ 8b United States v. Chicago, M. & St. P. Ry. Co. Appendix G; I'^nited States v. Southern Ry. Co. Appendix C; United States v. St. Louis S. W. Ry. Co. Appen- dix G. 8c Snyder v. Southern Pacific Ey. Col 187 Fed. 492. The construction of the language of the Safety Appliance Acts is not controlled by the language or by the interpretation of the terms of the act to regulate commerce. Pacific Coast R. 'Co. v. United States, 173 Fed. 448; United States V. Colorado & N, W. R. Co. 157 Fed. 321. "The amendment of 1903, 32 Stat, at L., 943, had three objects: First, to extend the Safety Appli- ance Act to traffic in the District of Columbia and the territories; second, to remove the doubt as to tlie moaning of the term 'cars' as used in the Act, created by the dexjision of this court in the Jolin- son Case, 117 Fed. 462; third, to enlarge the scope of the Safety Appliance Act, so as to include not only 'the cars, locomotives, tenders, and similar vehicles,' etc. therein referred to, but also to embrace 'all other locomotives, tenders, cars, and similar vehicles used in connection therewith." Chicago & N. W. Ry. Co. v. United States, 168 Fed." 236. ' United States v. Atlantic, etc., R. Co. 153 Fed. Rep. 918; Philadelphia, etc., R. Co. v. Wink- ler, 4 Pennewill (Del.), 387; 56 Atl. Rep. 112; affirmed, 4 Del. 80; 53 Atl. Rep. 90; Spain v. St. Louis, etc., R. Co. 151 Fed. Rep. 522; Plummer v. Northern Pac. Ry. 152 Fed. Rep. 206; St. Louis, etc., Ry. Co. v. Taylor, 210 U. S. 281; 28 Sup. Ct. Rep. 616; 52 L. Ed. 1061; S. C. 74 Ark. 445; 78 S. W. Rep. 220; 83 Ark. 591; 98 S. W. Rep. 959; Union Bridge Co. v. United States, 204 U. S. 364; Britfield v. Stana- han, 192 U. S. 470; Kansas City, •tc, R. Co. V. Flippo, 138 Ala. 487; 35 So. Rep. 457; United States V. Chicago, etc., Ry. Co. 149 Fed. Rep. 486; United States V. Great Northern Ry. Co. 145 Fed. Rep. 438; Chicago Junction Ry. Co. V. King, 169 Fed. 372; United States v. Baltimore & O. R. Co. Appendix — : Chicago, R. I. & P. Ry. Co. 185 Fed. 80; United States V. Boston & M. R. Co. 168 Fed. 148; Southern Ry. Co. v. Snyder, 187 Fed. 492. The Act of 1903 (Stat, at L., 943, Chap. 976) in aid of the statut/C did not render the original act unconstitutional. LTnited States V. Wheeling & L. E. R. Oo. 167 Fed. 198; Southern Rv. Co. v. United States, 222 U. S. — ; 32 ORIGIN, OBJECT, ETC., OF STATUTE. 235 In passing upon the Federal Employers' Liability Act in the Supreme Court of the United States, the court refers to two cases ^^ as settling the question of the validity of the Safety Appliance Act.^^ In still another case in the United States Supreme Court the question of the validity of the statute was practicallj^ settled/- And in a recent decision the validity of this statute has been put at rest by the Supreme Court, even holding that it is valid as to intrastate cars moved over an interstate railroad. The court said: "We come, then, to the question whether those acts are within the power of Congress under the commerce clause of the Constitution, considering that they are not confined to vehicles used in moving interstate traffic, but embrace vehi- cles used in moving intrastate traffic. The answer to this question depends upon another, which is. Is there a real or substantial relation or connection between what is re- quired by those acts in respect of vehicles used in moving intrastate traffic, and the object which the acts obviously are designed to attain; namely, the safety of interstate commerce and those who are employed in its movement? Or, stating it another way. Is there such a close or direct relation or connection between the two classes of traffic, when moving over the same railroad, as to make it certain that the safety of the interstate traffic and of those who are employed in its movement will be promoted in a real or substantial sense by applying the requirements of these acts to vehicles used in moving the traffic which is intra- Sup. Ct. 2; 56 L. Ed. — ; affirm- lo Johnson v- Southern Pac. Co, ing 164 Fed. 347; Watson v. 1(96 U. S. 1, 25 Sup. Ct. Rep. St. Louis, I. M. & S. Ry Co. 169 158; 49 L. Ed. 363; reversing 54 Fed. 942; Adair v. United States, C. C. A. 508; 117 Fed. Rep. 462; 208 U. S. 167; 28 Sup. Ct. 277; and Schlenimer v. Buffalo, etc., R. 52 L. Ed. 436; Atlantic Coast Co. 205 U. S. 1; 27 Sup. Ct. Rep. Line v. United States, 168 Fed. 407; 51 L. Ed. 681; reversing 207 175; Wabash R. Co. v. United Pa. St. 198; 56 Atl. Rep. 417. States, 108 Fed. 1; Kelly v. Great n Employee's Liability Act, 207 ]SI.orthern Ry. Co. 152*^111. 211; U. S. 463; 28 Sup. Ct.'Rep. 143; United States v. Wheeling & L. E. 52 L. Ed. 297. R. Co. 167 Fed. 198; United States 12 St. Louis, etc., R. Co. v. Tay- V. Pennsylvania Co., Appendix. lor, 210 U. S. 281; 28 Sup. Ct. Rep. 616; 5i2 L. Ed. 1061. 236 PEDERAXi SAPETY APPLIANCE ACT. state as well as to those used in moving that which is inter- state? If the answer to this question, as doubly stated, be in the affirmative, then the principal question must be answered in the same way. And this is so, not because Congress possesses any power to regulate intrastate com- merce as such, but because its power to regulate interstate commerce is plenary, and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transporta- tion, no matter what may be the source of the danger which threatens it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided were, in whole or in part, out of matters connected with intrastate commerce. Speaking only of railroads which use highways of both interstate and intrastate com- merce, these things are of common knowledge : Both classes of traffic are at times carried in the same car, and when this is not the case, the cars in which they are carried are frequently commingled in the same train and in the same switching and other movements at terminals. Cars are seldom set apart for exclusive use in moving either class of traffic, but generally are used interchangeably in moving both ; and the situation is much the same with trainmen, switchmen, and like employees, for they usually, if not necessarily, have to do with both classes of traffic. Besides, the several trains on the same railroad are not independent in point of movement and safety, but are interdependent; for whatever brings delay or disaster to one, or results in disabling one of its operatives, is calculated to injure the progress and imperil the safety of other trains. And so the absence of appropriate safety appliance from any part of any train is a menace not only to that train, but to others. These practical considerations make it plain, as we think, that the questions before stated must be answered in the affirmative.'"'^ 12a Southern Ry. Oo. Unite9 ?'• ^^o^.'o ^Ify''- ^^'^' ^'^ ^- ^- "United StatTs V. Illinois Cent. Rep. 959; Schlemmer v. Buffalo, r ^o. 156 Fed. Rep. 182. rt'"p rnv '.w %]'' rl ^"P- ^=Un't-l States v. Central .f Ct. Rep. 407; 51 L. Ed. 681; re- ^a. Ry. 157 Fed. Rep. 893. 238 FEDERAL SAFETY APPIJANCE ACT. of construction."^'^ The construction of the language of the Safety Appliance Act is not controlled by the inter- pretation of the terms of the act to regulate commerce/^ § 150a. State legislation concerning safety appliances. — In a number of states, laws have been enacted v;ith ref- erence to safety appliances on railroad locomotives, cars and vehicles ; and it is important to know whether those laws are valid in view of the power of Congress to legis- late upon that subject under the interstate commerce clause. Although broad enough in its terms, the Federal Safety Appliance Act does not apply to cars wholly engaged in intrastate commerce and not used on a highway of inter- state commerce.^® The state of Ohio enacted a law in almost the exact language of the Federal Safety Appliance Act with reference to automatic couplers, but limited it to a "locomotive, car, tender, or similar vehicle used in moving state traffic." In an action against an interstate railroad 16 Johnson v. Southern Pac. Rv. Co. 190 U. S. 1; 25 Sup. Ct. Eep 158; reversing 54 C. C. A. 508; 117 Fed. Rep. 462; United States V. Colorado, etc., R. Co. 157 Fed. Rep. 321; Chicago, etc., R. Co. v. King. 1G9 Fed. Rep, 372 (decided February 3, 1909) ; Wabash Ry. Co. V. 'United States, 168 Fed. Rep. 1 ( decided February 3 1909) ; Atlantic, etc., R. 'Co. v. United States 168 Fed. Rep. 175 (decided March 1, 1909). "The act of Congress is a reme- dial statute, and it is the duty of the court to so construe its provisions a-s to accomplish the in- tent of Congress — to protect the lives and limbs of men engaged in interstate commerce." United States V Central of Ga. Ry. Co. 157 Fed. Rep. 893; Southern Ry. Co. V. Snyder, 187 Fed. 492; United States v. Baltimore & Ry. Co. 170 Fed. 45G. 1" Pacific Coast Ry. Co. v. United States, 173 Fed. 448 (but see United States v. Geddes, Appen- dix) ; United States v. Chicago G. W. Ry. Co. 162 Fed. 775; Voei- ker V. Cliicago, M. & St. P. Ry. Oo. 110 Fed. 807; United States v. Chicago, R. I. & P. Ry. Co. 173 Fed. 684; United States v. Chica- go, M. & St. P. Ry. Co. 149 Fed. 486; United States v. Southern Ry. Co. 135 Fed. 122; Unite 1 States v. Southern R}'. Co. 170 Fed. 1014; United States v. Atlan- tic Coast Line R. R. Co. 153 Fed 918; United States v. Illinois Cen- tral R. R. Co. 156 Fed. 182; Uniteouisville & N. R. Co. v. United & St P. Ry. Oo. 149 Fed. 486; States, 186 Fed. 280; Felt v. United States v. Chicago G. W. Denver & R. G. R. Co. 48 C3olo. R. Co. 162 Fed. 775; United States 249; 110 Pac. 215, 1136. V. Pa>cific Ooast Ry. Co. 173 Fed. USE IN INTERSTATE TRAFFIC. 253 tale traffic ; but it does not appear that the use of the three was in connection with any car or cars used in interstate commerce. The defendant particularly objected to the as- sessment of j?ny penalty for the hauling of the three cars, and insisted, first, that such a hauling in intrastate com- merce, although upon a railroad over which traffic was con- tinually being moved from one state to another, was not ■wdthin the prohibition of the Safety Appliance Acts of Congress; and, second, if it was, those acts should be pro- nounced invalid, as being in excess of the power of Congress under the commerce clause of the Constitution. ' ' "^ It will thus be perceived that the court had before it the question of hauling cars on an interstate railroad without their being hauled in an interstate train — the hauling of cars in intra- state commerce. The court then proceeds, after the state- ment quoted, by first giving an historical review of the statutes, as follows: "The original act of March 2, 1893,^-'''' imposed upon every common carrier 'engaged in interstate commerce by railroad' the duty of equipping all trains, loco- motives, and cars used on its line of railroad in moving interstate traffic, with designated appliances calculated to promote the safety of that traffic and of the employees en- gaged in its movement ; and the second section of that act made it unlawful for 'any such common carrier' to haul or permit to be hauled or used on its line of railroad any car 'and in moving interstate traffic,' not equipped with auto- matic couplers capable of being coupled and uncoupled without the necessity of a man going between the ends of the cars. The act of March 2, 1903, "•= amended the earlier one and enlarged its scope by declaring, inter alia, that its provisions and requirements should 'apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce, and in the terri- 14a The statute in this respect i4b 27 Stat, at L., 531, Chap. 196; was held to be constitutional. See U. S. Comp. Stat. 19Q1, p. 3174. Sec. 149. The case reported below i4c 32 Stat, at L., 943. Chap. 97.^, is United States v. Southern Ry. U. S. Comp. Stat. Supp. 1909, Co. I&4 Fed. 347. p. 1143. 254 FEDERAL SAFETY APPLIANCE ACT. tories and the District of Columbia, and to all other loco- motives, tenders, cars and similar vehicles used in connection therewith.' Both the acts contained some minor ex- ceptions, but they have no real bearing here." The court then proceeds: ''The real controversy is over the true sig- nificance of the words 'on any railroad engaged' in the first clause of the amendatory provision. But for them the true test of the application of that clause to locomotive, car, or similar vehicle would be, or it was under the original act, the use of the vehicle in moving interstate traffic. On the other hand, when they are given their natural signifi- cation, as presumptively they should be, the scope of the clause is such that the true test of its application is the use of the vehicle on a railroad which is a highway of inter- state commerce, and not its use in moving interstate traffic. And so certain is this that w^e think there w^ould be no con- tention to the contrary were it not for the presence in the amendatory provision of the third clause — 'and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith.' In this there is a sug- gestion that what precedes does not cover the entire field; but at most it is only a suggestion, and gives no warrant for disregarding the plain words, 'on any rail- road engaged' in the first clause. True, if they were rejected, the two clauses, in the instance of a train composed of many cars, some moving in interstate traffic and others moving in intrastate traffic, would, by their concurrent opera- tion, bring the entire train within the statutes. But it is not necessary to reject them to accomplish this result, for the first clause, with these words in it, does even more ; that is to say, it embraces every train on a railroad which is a highway of interstate commerce, without regard to the class of traffic which the cars are moving. The two clauses are in no wise antagonistic, but, at most, only redundant; and we perceive no reason for believing that Congress in- tended that less than the full effect should be given to the more comprehensive one, but, on the contrary, good reason for believing otherwise. As between the two opposing USE IN INTERSTATE TRAFFIC. 255 views — one rejecting the words 'on any railroad engaged' in the first clause, and the other treating the third clause, as redundant — the latter is to be preferred, first, because it is in accord with the manifest purpose, shown throughout the amendatory act, to enlarge the scope of the earlier one and to make it more effective ; and, second, because the words which it would be necessary to reject to give effect to the other view were not originally in the amendatory act, but were inserted in it by way of amendment while it was in process of adoption ^''^ thus making it certain that without them the act Vv'ould not express the will of Congress. For these reasons it must be held that the original act, as en- larged by the amendatory one, is intended to embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce. ' ' ""^ According to this decision the test of a railroad company's liability is the use of a vehicle on its "railroad which is a highway of interstate commerce," and it is not necessary to show that interstate traffic Avas in the car or in some part of the train in which it was being moved or hauled. In many of the earlier cases, therefore, where the railroad companies were held liable on the ground that the car was loaded with inter- state traffic or w^as incorporated in a train hauling inter- state traffic, the judgments of the court were correct, though placed upon grounds different from that taken by the Supreme Court. By this decision it is not necessary to prove that interstate traffic was aboard the car or train, it being sufficient to show that the defendant's railroad was i4d Fifty-seventh Cong., 1st Ses;; , 233. See, also, St. Louis, I. M. Vol. 35, pt. 7, p. 7300; Id. & S. Ry. Co. v. Hesterly. (Ark.); 2d. Sess., Vol. 36 pt. 3, p. 2268. 135 S. W. 874; Patten v. Faithorn. lie Southern Ry. Co. v. United 152 III. App. 426. States, 222 U. S. — ; 32 Sup. In Luken v. Lalce Shore & M. S. Ct. 2; 56 L. Ed. — ; affirming 164 Ry. Co. 248 III. 377; 94 N. E. 175, Fed. 347. For criticism of this the Supreme Court of Illinois holds case, see 73 Cent. L. Jr. 423. The that the test is whether the defec- case follows Delk v. St. Louis tive car was moving interstate com- & S. F. R. Co. 220 U. S. 580 ; merce at the time the pLaintiflF was 31 Sup. Ct. 617; 55 L. Ed. injured. Tliis was before the deci- 590; reversing 158 Fed. 931; 86 sion by the Supreme Court of the C. C. A. 95; 14 A. & E. Ann. Cas. United States. 256 FEDERAL SAFETY Al^PLLUSTCE ACT. a highway of interstate commerce.^*' Of course, it may be shown in evidence that cars in the same train were loaded with interstate traffic, or that empty cars therein were being hauled from one state to another; or it may be shown that interstate traffic or cars were being or had been carried in other trains over the same railroad of the defendant, for the purpose of showing that such railroad line was ' ' a high- way of interstate commerce. ' ' Waybills showing the move- ment of interstate freight over the railroad line in question are admissible to prove the fact that the line w^as "a high- way of interstate commerce;" and copies of such bills regu- larly kept in the defendant's office at the point of shipment, when properly identified, may be put in evidence, without accounting for the originals, as admissions of the charge that the railroad line was "a highway of interstate com- merce;" and even a memorandum of an employee, made in the line of his duty, from the original waybills is admissible to prove that charge.^*^ § 160. Transportation of articles of interstate commerce for an independent express company. — If a railroad com- pany, even though it has its lines wiiolly within the bound- aries of a single state, accept and transport articles of interstate commerce for an independent express company," it is engaged in interstate commerce and must equip its cars i4f Tliis decision of the United gaged.' And, indeed, this is not States Supreme Court in a measure a forced oonstruotion, but is one clears away the difficulty the court of the natural constructions whicli labored under in Louisville & N. the Avords actually used would R. Co. V. United States, 186 Fed. bear, for 'engaged' might, with 280, and shows that the court w^as equal propriety, refer to a continu- not exactly correct in its interpre- ous period or to a definite time, tation of the statute as set forth And this would found the duty of in the following language, viz.: adopting the latter definition. "Tiiese considerations lead us to And so construed the statute is the conclusion that the amendment relieved of the objection that Con- of 19(>3 was intended to be a regu- gress has no power to regulate the lation of railroads while they are domestic commerce of a state." engaged in interstate commerce and i^s Tx)uisville & N. R. Co. v. that the language means the same Unite<^l States, 186 Fed. 280. thing as if the word 'when' were i^ Wells, Fargo & Company, interposed before the word 'en- USE IN INTERSTATE TRAFFIC. 257 in- the train with automatic couplers to escape the penalty inflicted by the act of Congress. "But although the express company," said Judge Sanborn, "was not one of the com- mon carriers engaged in interstate commerce to which the original interstate commerce act applied, ^° the box of liquor it caused to be transported from Missouri to Colorado was an article of interstate commerce, its carriage was a trans- action of that commerce, and the express company's partici- pation in its transportation was engaging in interstate commerce/^ Moreover, the interstate commerce act had been so amended that express companies were subject to its pro- visions before the transportation here in issue was con- ducted/^ The Safety Appliance Act declares that 'it shall be unlawful for any common carrier engaged in interstate commerce by railroad, '^^ 'to haul or permit to be hauled or used on its line any car' (or engines) -° — except four- wheeled cars and certain logging cars -^— ' and in moving interstate commerce traffic unequipped with couplers coup- ling automatically by impact, ' -- and that every such carrier shall be liable to a penalty of one hundred dollars for each violation of the statute. The Northwestern Company -^ trans- ported the box of liquor upon its railroad from Boulder to Sunset for the express company, on its continuous passage from its origin in one state to its prescribed destination in another, and evidence was rejected upon the trial that it was a daily occurrence for this railroad to carry express matter in its cars which had been consigned from points without '«Citinf^ United States v. Mors- Rep. 229; 47 L. Ed. 33G; revers- man, 42 Fed. Rep. 448; Southern ing 127 N. C. 521; 37 S. E. Rep, Indiana Exp. Co. v. U. S Exp. Co. 138. 88 Fed. Rep. 659. "*Act June 29, 1906, S. 3591, "Citing Crutcher v. Kentucky, Sees. 1 and 11; 34 Stat, at L. 141 U. ^. 47; 11 Sup. Ct. Rep. 584, 595. 851; 35 L. Ed. 649; reversing 89 "27 Stat, at Large, 531, Sec. 1. Ky. 6; 12 S. W. Rep. 141; Os- =" Citing Johnson v. Southern borne v. Florida, 164 U. S. 650; Pac. R. Co. 19G U. S. 1 ; 25 Sup. 17 Sup. Ct. Rep. 214; 41 L. Ed. Ct. Rep. 158; 49 L. Ed. 3u3; re- 586; affirming 33 Fla. 162; 25 L. versing 54 C. C. A. 508; 117 Fed. R. a; 120; 4 Interst. Com. Rep. Rep. 462. 731; 14 So. Rep. 588; 39 Am. St. "Citing Sec. 6 of Act. Rep. 99 ; Caluwexi v. North Caro- ^ Citing Sec. 2 of Act. lina, 187 U. S. 622; 23 Sup. Ct. ^The defendant. 258 FEDERAL S.LPETY APPLIANCE ACT. to places within the state of Colorado. That rejected evi- dence should have been received because it had a tendency to show that the railroad company was engaged in inter- state commerce, and if the testimony had fulfilled the prom- ise of the question propounded to elicit it, and had been uncontradicted, the fact would have been established that the company was thus engaged within the meaning of the Safety Appliance Act. The transportation by a common carrier by railroads of articles of interstate commerce for an independent express company is engaging in interstate commerce by railroad as effectually as their carriage by it for the vendors or consignors." "Our conclusion is that a common carrier which operates a railroad entirely within a single state and transports thereon articles of commerce shipped in continuous passage from places without the state to stations on its road, or from stations on its road to points without the state, is subject to the provisions of the Safety Appliance Acts, although it carries the property free from a common control, management or arrangement with an- other carrier for continuous carriages or shipments of the goods." -* § 161. Distance defective car hauled. — It is immaterial how short a distance the defective car is hauled; if hauled at all the railroad company is liable. This is particularly true of terminal railroads.-^ In fact the defective ear need not be moved at all, if it is "used" in interstate commerce.^^* 24 United States v. Colorado, Fed. 353 ; United States v. South- etc., R. Co. 157 Fed. Rep. 321, 342. ern Ry, Co. 135 Fed. 122; Craw- This Colorado railroad was cer- ford v. Xew York, etc., R. Co. 10 tainly "a highway of interstate Am. & Eng. R. Cas. 1G6; United commerce" for it was devoted States v. Pittsburg, etc., R. Co. 143 to carrying such parcels or pack- Fed. 3(50. ages witliin the interpretation of A movement of a car not ex- the Supreme Court of the United ceeding twenty feet, resulting in States in the recent decision ex- injuring an employee, was held to plained in Sec. 159. be a violation of tlie statute. Chi- 2' United States v. Xorthern cago, etc., R. Co. v. King, 109 Fed. Pac. Terminal Co. 144 Fed. Rep. Rep. 372 (decided February 3, SGI; United States v. Philadel- 1909) ; Donegan v. Baltimore, etc., phia, etc., R. Co. 160 Fed. Rep. R. Co. 165 Fed. Rep. 800. 696; 162 Fwl. Rep. 403; United 23a See Sec. 166. States V. Chicago, etc., R. Co. 143 USE IN INTERSTATE TRAFFIC. 259 § 162. Switching car. — The statute applies to a car while being used in switching movements.-" Thus a car, having a defective coupler, was one belonging to the Wabash Rail- road Company, and was known and designated as a foreign car. It was brought into Minneapolis, Minnesota, from Wisconsin by the Soo Railroad, delivered by it to the Great Northern Railway Company, the defendant, loaded with coal, and by the defendant delivered to the consignee. It was then imloaded and placed on a switch of the defendant for the purpose of redelivery to the Soo Railroad, It was delivered to that railroad, and afterAvards loaded with shingles in ]\Iinnesota, and taken by the Soo road thus loaded into Wisconsin on its return home. While it was standing on the defendant's track, and before its delivery to the Soo road, an employee of the defendant was injured because of a defective coupling; and it was held that the car at the time was used in interstate commerce.-"^ "United States v. Pittsburg, etc., K. Co. 143 Fed. Rep. 360; Crawford v. New York, etc., R. Co. 10 Am. & Eng. Neg. Cas. 166; United States v. Northern Pacific T. Co. 144 Fed. Rep. 861; United States V. Pittsburg, etc., R. Co. 143 Fed. Rep. 360; United States V. Chicago, etc., Ry. Co. 143 Fed. Rep. 353; Chicago, etc., R. Co. v. United States, 165 Fed. Rep. 425. United States v. Philadelphia, etc., Ry. Co. 160 Fed. Rep. 696. and 162 Fed. Rep. 403; United States v. Lehigh Valley R. Co. 162 Fed. Rep. 410; United States v. Philadel- phia, etc., R. Co. 162 Fed. Rep. 405; United States v. Pennsylva- nia R. Co. 162 Fed. Rep. 408; El- gin, etc., R. Co. V. United States, 168 Fed. Pv;ep. 1 (decidAl February 3, 1909) ; Wabash R. Co. v. United States, 168 Fed. Rep. 1 (decided February 3, 1909); United States V. Southern Ry. Co. 167 Fed. 690; Appendix G; Johnson v. Great Northern Ry. Go. 178 Fed. 643; Erie R. Co. v. Russell, 183 Fed, 722; Siegel v. N. Y. Central R. Co. 178 Fed. 873; Chicago, M. & St. P. Ry. Co. V. United States, 165 Fed. 423; Patten v. Faithor.i, 152 111. App. 426. The rule laid down in this section is adopted by the Supreme Court. Delk v. St. Louis & S. F, R. Co. 220 U. S. 580; 31 iSup. Ct. 617; 55 L. Ed. 590; reversing 158 Fed. 931; 86 C. C. A. '95 ; 14 A. & E. Ami. Cas. 233; Union Stock Yards v. United States, 1-69 Fed. 409 ; United Sta-tes V. Southern Pacific Cb. Appen- dix G; Mobile, J. & K. C. Co. v. Bromberg, 141 Ala. 258; 37 So. 395. 2Ga Johnson v. Great Northern Ry. Co. 178 Fed. 643. The court relied upon Johnson v. Southern Pacific Co. 196 U. iS. 1; 25 Sup. Ct. 158; 49 L. Ed. 363 and Voel- ker V. Chicago, M. & St. P. Ry. Co. 116 Fed. 867: same case on appeal. 129 Fed. 522; 65 C. C. A. 226; 70 L. R. A. 264. 260 FEDERAJj SAFETY APPIJ.VNCE ACT. § 163. Belt railroad — Terminal road.— The statute ap- plies to cars hauled on a belt railroad, used as a link be- tween railroads engaged in interstate commerce.-^ So it applies to a terminal road, and to those delivering to and receiving cars from it.^^ "When, therefore, the terminal company is engaged in effecting a transfer of one of those cars ^5ta one line of railway to another, it is itself engaged in handling a ear used in moving interstate traffic. Thus far there can be absolutely no evil. But what is the differ- ence if it takes the car from one of the lines and moves it to its own team track, there to be unloaded, or moves it back empty and places it in one of the lines again to be for- warded elsewhere? In either event it handles a car used in the designated traffic. So it does with equal fault when it moves a car used for moving interstate traffic set in by one of the lines to a convenient engine upon the yard, to be unloaded of its coal designed for use by such engine. It is hauling or using a car, the particular use of which is in- hibited by the statute."^® "It must be conceded that the Stockyards Company would not be a common carrier, nor the property used by it a railroad, if its operations were confined to maintaining the sheds or pens, to unloading shipments thereto, to loading shipments therefrom, and to 27 Interstate Stock Yards v. In- United States v. Union Stock dianapolis Union Ry. Co. 99 Fed. Yards Co. 161 Fed. Rep. 919; Rep. 472; United States v. Union affirmed, 169 Fed. 404; Belt R\. Stock Yards Co. 161 Fed. Rep. Co. v. United States, 168 Fed. 542; 919; Belt Ry. Co. v. United States; see Appendix G. see Appendix G; Belt Ry. Co. v. "It may be questioned whetlier United States, 168 Fed. Rep. 542 a railroad company must be a com- ( decided February 3, 1909). mon carrier in order to bring it 28 United States v. Cliicago, etc., within these acts, since the amend- R. Co. 14.3 Fed. Rep. 353; United nient approved March 2, 1903, States V. Southern Pac. Co. 151- makes the provisions and require- Fed. Rep. 897; United States v. ments of that amendatory act, as Northern Pac. T. Co. 144 Fed well as of the original, apply to all Rep. 861. 'cars and similar vehicles used on -9 United States v. Northern any railroad engaged in interstate Pacific Terminal Co. 144 Fed. Rep. commerce.' " tTnited States v. 861 ; Oliicago, etc., R. Co. v. Union etc., Co. 161 Fed. Rep. 919. United States, 165 Fed. Rep. 423; USE IN INTERSTATE TRAFFIC. 261 feeding, watering, caring for, and otherwise handling live stock therein. But its operations are not thus confined. On the contrary, they include the maintenance and use of railroad tracks and locomotives, the employment of a corps of operatives in that connection, and the carriage for hire over its tracks of all live stock destined to or from sheds or pens, which, in effect, are the depot of the railroad com- pany for the delivery and shipment of live stock at South Omaha. The carriage of these shipments from the transfer track to the sheds or pens, and vice versa, is no less a part of their transit between their points of origin and destina- tion than is their carriage over any other portion of the route. * * * In those circumstances controlling decisions leave no room to doubt that it is a common carrier engaged in interstate commerce by railroads within the meaning of the Safety Appliance Law. ' ' "^^^ § 164. Car on spur track. — In a case in Alabama the evi- dence showed that the defendant operated a railroad running between Birmingham of that state and Memphis in the state of Tennessee. The plaintiff was in its employ and service at the time he received his injuries as brakeman, and was in- jured while in the act of coupling a ear to a switch engine on a spur track a mile from the main track, this spur track joining the main track at Carbon Hill, a station of the defend- ant. At the time of the injury the car was being switched on the spur at a coal mine preparatory to being carried to Carbon Hill by defendant's switch engine in charge of its employes, to be then shipped over its main line. The switch engine never went further than Carbon Hill, and was used for no other purpose than swdtching, not being used on the main line, but being used merely for carrying cars to the station from the mines, and then placing the cars on a special siding at the station, Carbon Hill, from which tney were taken by regular trains to the point of destination 29a United States v. Union Stock Yards Co., 169 Fed. 404. 262 FEDERAL SAFETY APPLIANCE ACT. After the car had been loaded at the mines and put on the storage track or special siding at Carbon Hill, it was there- after billed and shipped from Carbon Hill to Aberdeen, i\Iississippi, by the company owning the coal mines. Some- times, also, cars were billed from the mines. There was nothing to show that any instructions whatever had been given by the shipper before the car reached Carbon Hill as to its destination or intended destination ; but after being placed on the storage track at Carbon Hill it was picked up by a regular train and carried to Aberdeen. So far as the evidence showed, the oar at the time of the accident, while still at the mines, might have been intended for shipment bj'' the mine owner to some point within the state. Upon these facts the court refused to disturb the verdict of the jury to the effect that the car was engaged in interstate com- merce at the time the defendant was injured by a defective coupling on the car.^° § 165. "Used in moving interstate trafl&c" — Sending car to repair shop — Making up train.— The phrase "used in moving interstate traffic" does not mean that a car must be actually loaded and on its journey from one state to an- other in order to be within the provisions of the statute; but only that it has been intended and is intended to be so used whenever required; and it is a violation of the statute to move such a car, if not equipped with automatic brakes, from one state to another as a part of a train, although it is empt}^ at the time; nor is the mere fact that it is destined for a repair shop a defense.^' The statute applies to making •>o Kansas Oity, etc., R. Co. v. Ry. Co. 145 Fed. Rep. 438 ; Elgin, Flippo, 138 Ala. 487; 35 So. Rep. etc., R. Co. v. United States, 1G8 457; Chicago, etc., R. Co. v. Fed. Rep. 1 (decided February 3, United States, 165 Fed. Rep. 423. 1909); United SUites v. Philadel- Under the recent decision of the phia, etc., R. Co. IGO Fed. Rep. Supreme Court of the United G!)6; 1G2 Fed. Rep. 403; United States this decision is correct in Stites v. Pennsylvania R. Co. 162 its general result. See Sec 159. Fed. Rep. 408 (see Appendix G) ; 81 United States v. St. Louis, United States v. Philadelphia, etc., etc., R. Co. 154 Fed. Rep. 516; R. Co. 162 Fed. Rep. 405 (see United States v. Great Northern Ai>i>endix G) ; United States v. USE m INTERSTATE TRAFFIC. 263 up the train for the purpose of moving interstate traffic. ^- And so it applies to a dining car standing on a side track waiting to be hitched onto its regular train.^^ § 166. Hauling" car not essential to commission of offense — Use of car.— If a car is used in interstate commerce the statute is violated, and it is not necessary that it be hauled to constitute its violation. "In section two it is the hauling or using of the car that is condemned. In section four it is the using alone that is condemned. The former section reads, it shall be unlawful to 'haul or permit to be hauled or used, ' etc. ; the latter reads, it shall be unlawful for any railroad 'to use any car,' etc. The penalty is imposed in section six, when the car is 'hauled or used.' Is the de- fendant's contention true, that a hauling is absolutely neces- sary to complete the offense? The statute forbids hauling and using. Why are both words used? If the car was fully loaded and on the track ready to be started as a part of an interstate train, with the engine attached and fired, and requiring only the touch of the engineer to start, would not the car be 'used' or in use, within the statute, before it was hauled? If it were without an automatic coupler, so that the brakeman would have to go between the cars to couple them, it would clearly be within the mischief the statute was intended to prevent. 'Used' has other mean- ings than 'hauled.' It is a broader word. "^^^ In another case it was said "After the coupler became defective, and could not be coupled without going between the ends of Lehigh Valley R. Cb. 162 Fed. Rep. berg, 141 Ala. 258; 37 So. Rep. 410 (see 160 Fed. 696: Appen- 395; United States v. Northern dix G) ; United States v. Louis- Pacific T. Co. 144 Fed. Rep. 861. ville, etc., R. Oo. 162 Fed. Rep. ^^ Johnson v. (Southern Pac. Ry. 185. But as to hauling to a repair Oo. 196 U. S. 1 ; 25 Sup. Ct. Rep. shop, see now Sec. 206. But not 158; reversing 117 Fed. Rep. 462; under the Massachusetts state 54 C. 0. A. 508 ; Chicago, etc., R. statute. Taylor v. Boston, etc., R. Co. v. United States, 165 Fed. Rep. Co. 188 Mass. 390; 74 N. E. Rep. 423. .591. 33a United States v. St. Louis 32]\fobi]e, etc., R. Co. v. Brom- S. W. Ry. Co. Appendix G. 264 FEDERAL SAFETY APPIJANCE ACT. the ears, it became unlawful for the railroad company to haul it, or permit it to be hauled, or used on its line. It then became the duty of the railroad company to withdraw the car from use, and have it repaired to conform with the law before using it further. ' ' ^^^ § 167. Car not used in interstate commerce. — Of course, a car not used in interstate commerce does not come within the provisions of the statute; but if it is hauled in an inter- state train of cars it does ; because the danger to employes engaged in transportation of interstate tratftc — whom it was the design of Congress to i)rotect— is just as imminent as if the car was used in interstate commerce.''* And so the same is true if it be hauled over a railroad devoted as a highway of interstate commerce.^*^ §168. Interstate car in "connection" with intrastate car. — Under the recent decision of the Supreme Court of the United States^** it is now immaterial whether the ear out of repair was or was not used in immediate ''connec- tion" with an interstate car. The amendment of 1903 provides that the Act of 1893 "shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce" "and to all other locomotives, tenders, cars and similar vehicles used in connection therewith." Before the decision of the Supreme Court above referred to, in a case in the Sixth District it appeared that ' ' Near to the forward end of it was a car loaded with freight, some of which was consigned to a point or points" in another state. It was "not charged 83b St. Louis & S. F. Ry. Co. v. Atl. Rep. 90; Elgin, etc., R Oo. v. Delk, 158 Fed. 931; 86 C. C. A. United States, 168 Fed. Rep. 1 95; 14 A. & E. Ann. Cas. 233; (decided Februaiy 3, 1900); reversed in Delk v. St Louis & S. United States v. Chicago, etc., R. F. R. Co. 220 U. S. 580; 31 Sup. Cb. 162 Fed. Rep. 775. Ct. 617; 55 L. Ed. 590 but not on Congress has no power to regu- thia point which was expressly late the use of cars not employed approved by the Supreme Court. in interstiite commerce, and the United States v. Southern Pacific Safety Appliance Act cannot bo so Co. Appendi.? G. construed. United States v. Erie sMVinkler v. Philadelphia, etc., R. Co. 166 Fed. Hop. 352. R. Co. 4 Penn. (Del.) 387; 53 34a See Sec. 159. USE IN INTERSTATE TRiVFFIC. 265 that this car was not equipped with the proper couplings and handholds. Toward the rear end of the train were the four freight cars in question, not alleged to he carrying interstate freight, which were not equipped with the re- quired couplings as to the two cars, nor with proper hand- holds as to the other two. Between these and the car carrying interstate freight were other cars not alleged to be carry- ing interstate freight and not alleged to be without the required couplings or handholds." As the cars out of repair were not alleged to be in interstate commerce they were considered to be intrastate cars; and as there was a car not alleged to be out of repair between them and the interstate car, it was considered that such car must also be regarded as an intrastate car; and, therefore, as there was an intrastate ear, not out of repair, between the inter- state car and the intrastate car out of repair (and which was the basis of the action on the part of the government), it was claimed that such out-of-repair cars were not "used in connection" with the interstate car, it being argued ''that the 'connection' of the car cari*ying interstate freight which the act intends is an immediate connection with the cars not properly equipped." But the court, although admitting "there was some ground for argument that the law should have such restricted operation," because of its penal char- acter, considered that "the trend of decisions of circuit courts and the circuit courts of appeal had been the other way, and is to the effect that the connection of the cars in the trains is not required to be immediate, and we are not so far convinced that those decisions are wrong as to justify us in holding to the contrary. ' ' ^*^ Exactly the opposite had been held in the Seventh Circuit.^*^ Of course, as we have above stated, these eases need not now, upon this point, be considered.^*^ 34b Louisiville & N. R. Co. v. tion Ry. Co. v. King, 169 Fed. United States, 186 Fed. 280. 372; Chicago & N. W. Ry. Co. v. 34C United States V. Illinois Cen- United States, 1G8 Fed. 236; tral R. Co. 166 Fed. 997. United States v. Sonthem Pacific, 34dSee United States v. Inter- 169 Fed. 407; United States v. national & G. N. R. Co. 174 Fed. Chicago & N. W. Ry. Co. 157 Fed. 63S; Wabash R. Co. v. United 616; United States v. Chicago G. States, 168 Fed. 1; Chicago June- W. Ry. Co. 162 Fed. 775; United 266 FEDERAL SAFETY APPLIANCE ACT. § 133. Use of car in interstate commerce. — Since the mere use of an improperlj^ equipi)c'd ear in interetate coimnerce is an offense under the Federal Safety Appliance Act, the in- quiry naturally arises "What is the use that the statute forbids?" Of course, if a ear is loaded with interstate traffic and hauled in a train of cars it is "used." If it is empty and hauled in an interstate train it is also in "use"; for an offense is committed. Under the recent decision of the Supreme Court of the United States ^*^ whether loaded or unloaded, even if it he an intrastate car hauled in an intrastate train, yet if it be hauled over a rail- road that is "a highway of interstate commerce" it is an offense whether we regard it as either hauled or "used." Under the decision cited in the next previous section ^*® if the car be merely loaded with interstate traffic it is "used" in interstate commerce ; and applying the reasoning of the Supreme Court above referred to ^^"^ it would seem that if it be merely loaded for removal with intrastate commerce it is "used" within the prohibition of the statute; indeed, combining that decision with the decision concerning empty cars, it would seem to be a logical result of their trend that an empty intrastate car designed or intended to be hauled on a railroad which is "a highway of interstate commerce" is also "used" within the prohibition of the statute. But it is readily seen that here we are treading upon dangerous ground and practically losing sight of those instances wholly under the control of a state. At this point courts are bound, in all likelihood, to differ, and only the commanding decision of the Federal Supreme Court can settle the question.^*^ States V. Chesapeake & 0. Ry. Co. 34e -Section 165. Appendix G ; United States v. -'^li Section 159. Soutliern Pacific Co. 1()7 Fed. 699; 34g it may be noted that in a United States v. Southern Ky. Co. number of tlie more recent deoi- Appendix G; United States v. sions tlie word "commercial" is Toledo Terminal R. Co. Appen- occasionally applied to the cars :lix G ; United States v. Southern drawn in question in the oases Pacific Co. Appendix G. wherein such decisions are ren- USB IN INTERSTATE TRAFFIC. 2G7 § 170. Temporary suspension of traiiSportation.— The temporary suspension of the transportation of a oar does not take it out of the statute. "Whether that [the ultimate destination] was nearby or remote is not material, because the shipment had originated in another state and was al- ready impressed with the character of interstate traffic, which would follow it at least until the actual transit ceased. ' ' ^^ § 171. Permitting cars to be hauled over its lines. — It is immaterial not only what company owns the cars but it is also immaterial what company hauls so far as the company owning the line over which they are hauled commits an of- fense. Merely permitting cars improperly equipped to be hauled by another company over its line of railroad is an offense in the company o^^^ling the railroad and permitting the hauling to be done. "It does not matter whether the defendant was the o"\\Tier or not, because the statute pro- hibits the use on the line of the road or the permitting to be hauled on the line of the road, any of these cars not equipped as the statute provides. So that if they permitted to be hauled or used on their roads ^ny such cars, even though they belonged to other companies, they would offend against this provision of the vStatute."^" dered, as "commercial use." Whether 166; United States v. Chicago, M. or not courts will seize i-pon tu i & St. P. Ry. Co. 149 Fed. -IS^i. The word "commercial" and apply it in receiving company must ascertain an interpretation of the word at its peril that each car it re- "used" is not to be foretold. ceives from another railroad corn- Touching the itse of the Avord "oom- pany is properly equipped with mercial," see Southern TXy. Co. v. s.afety appliances. United States Snyder, 187 Fed. 492; ciiieago & v. CMcago, etc., R. Co. 1G2 Fed. N." W. Ry. Co. V. United States-, Rep. 775; United States v. South- 168 Fed. 236; United States v. ern Pac. Co. ( see Appendix G ; 1G7 So'ithei-n Pacific Co., 169 Fed. 407. Fed. 699). What is the receipt 35 Chicago, etc., Ry. Co. v. of a car, see Chicago, etc., R. Co. Voelker, 129 Fed. Rep. 522; 35 v. United States, 165 Fed. Rep. C. C. A. 65; 70 L. R. A. 264; 423. Chicago, etc., R. Co. v. United Section 2 makes it unlawful for Stages, 165 Fed. Rep. 423. a railroad company to "haul or 38 Crawford v. New inrk, et.-., permit to be hauled or used" a R. Co. 10 Am. & Eng. Neg. Cas. defective car "on its line." St. 268 FEDERAL SAFETY APPI.IANCE ACT, § 172. Defendant hauling car over another company's line of railway. — The statute makes it an offense for any raihvay company to run or liaul or permit to be hauled or used "on its line" any ear in violation of its provisions; and the question has been presented whether an interstate commerce railway company hauling its train of cars over another company's line of railroad track incurred the pen- alty of the statute. In one case the charge was that the defendant hauled a defective car "over its line of railroad" from one place in New Jersey to another in Pennsylvania. The defendant had an agreement with another railroad company by which it was enabled to haul its trains over such other company's tracks between the two points desig- nated, but subject to the rules of such other company. The defendant was held liable, the court saying : * ' The fact that in conducting its train over these tracks the defendant company did so, subject to such rules and regulations of the other company as were necessary for the safe and convenient conduct of its business, in nowise militates against the proposition that the defendant company had a legal right to the use of these tracks, and that during such use they were properly the line of the defendant company, ^^•ithin the meaning of the 'Safety Appliance Act.' It was therefore in violation of the act that it allowed the car in question to be hauled in its own train, in the control of its own employees, over a line upon which it had a legal right to conduct its interstate traffic. Such contracts are not unusual, since we find cases in the books arising out of litigation concerning such agreements. The fact, if it be a fact, that in this ease the inspection of the cars was made by the servants of the Central Railroad of New Jersey, can- not relieve the defendant from the liability imposed by the Louis S. & F. R. Co. v. Delk, 158 case was reversed, by the Supreme Fed. »31; 86 C. C. A. 95; 14 Court. Delk v. Rt. Louis, S. & V. A. & B. Ann. Cas. 233. This R. Co. 220 U. S. 580; 31 Sup. Ct. point was approved, although the 617; 65 L. Ed. 590. USE IN INTERSTATE TRAFFIC. 2G9 act. It can not by contract dispense with any care required of it by law, and the most that could be said of such a situation would be that it had voluntarily made the in- spectors of the other company its own. ' ' ^'* § 173. Freight designed for another state — Not yet left the first state. — It matters not tlrat the freight designed for another state has not yet left the state from which it is in- tended for such other state, if it has been placed aboard the cars ready for transportation to such other state. In one case the following language was used : "It has been proven in this case * * * that both of the cars in question were carrying trafjfic consigned from a point in one state to a point in another state. This makes such traffic interstate commerce. While the evidence does not show that the de- fendant hauled the car across the state line, still the defend- ant is engaged in interstate traffic no matter how short the movement, if the traffic hauled is in course of movement from a point in one state to a point in another. "^^ § 174. Intrastate traffic — Narrow gauge railroad wholly within state.— A company owned and operated a narrow gauge road that lay wholly within the state of Ohio, and was about one hundred miles long, terminating at Bellaire on the Ohio river. At Bellaire it connected with the Baltimore & Ohio Railroad in the sense that it received from that railroad freight from other states marked for points on its line, and delivered to it freight from points on its own line marked for other states in the following manner: There 37 United States v. Central of particular phase of the question Ga. Ry. Co. 157 Fed. Rep. 893; discussed in this section is now- United States V. Northern, etc., academic in view of the recent Ry. Co. 144 Fed. Rep. 861; United decision of the United States Su- States V. St. Louis, etc., R. Co. preme Court. See Sec. 159. 154 Fed. Rep. 516. It must be 37a Philadelphia & R. Ry. Co. v. apparent to the reader that the United States, 191 Fed. 1. 270 FEDERAL SAFETY APPLIANCE ACT. was no interchange of cars because of the different gauges of the two roads, the defendant's cars being used only on its own road. A transfer track ran from its terminal sta- tion to the Baltimore and Ohio road, so the freight cars of the two roads could be placed alongside of adjoining plat- form, and the transfer of freight made from the cars of one road to those of the other. Neither road issued through bills of lading for the freight transferred; and no through rate for freight was fixed by nuTtual arrangement, nor was there a division of freight charges for through freight car- ried b}' both roads. Freight transported to Bellaire by the narrow gauge road and marked for a point in another state Avas delivered to the agents of the Baltimore and Ohio with an expense or transfer bill that stated the original point of the shipment, the consignee and place of consignment, and the freight charges of the delivering road. The usual way- bills accompanied this traffic. On taking charge of freight thus delivered to it, the Baltimore and Ohio assumed the payment of the narrow gauge road's freight charges, and collected the entire charges of the transportation on deliver- ing the freight at its destination. Incoming freight was handled in the same manner, except that the agents of the Baltimore and Ohio at Bellaire would bring the traffic to and put it in cars of the narrow gauge road. When it received freight with the expense or transfer bill, the nar- row gauge road would assume the charges of the other road, and collect the entire freight charges at its destination. There were weekly settlements between the two roads of freight charges, and balances paid when found due; but each road became responsible for the freight charges of the other, whether the consignee paid them or not. Such transfers oc- curred daily, and each company's charges were in accord- ance with its own rates. The acts upon which the suit was based were hauling in a car not equipped as the act of Congress required, cases of eggs destined for a point in Pennsylvania and delivered at Bellaire to the Baltimore and USE IN INTERSTATE TRAFFIC. 271 Ohio for shipment to the point of destination; and also the hauling of certain freight in ears not properly equipped from Bellaire to a station over the narrow gauge road, which freight had been shipped from Philadeli)hia, in Pennsyl- vania, and consigned to a point on the latter road. It did not appear there was any through bill of lading; but the form of the bill of lading used by the defendant, the narrow gauge road, provided as follows: "This blank must in no case be filled with the name of any station or place beyond the line of this company's road." Upon these facts it was held that the car carrying the eggs and those carrying the freight from Philadelphia were not used in interstate com- merce, and so need not be equipped with automatic brakes.^^ § 175. Intrastate railroad engaged in carrying interstate commerce articles.— This statute has been held to apply to a railroad company operating wholly within a state, inde- pendently of all other carriers, but which receives and trans- ports to their destination articles, in a continuous trip, brought from another state Thus, a narrow gauge railroad was operated wholly within the state of Colorado. A ship- ment of hardware was carried by an interstate wide gauge railroad from Omaha, Nebraska, to a station on this narrow gauge road and delivered to it for carriage to a station on the main line a few miles farther on, to which place it had been consigned from Omaha. This shipment was not carried upon a through bill of lading, but it was consigned »» United States v. Geddes, 131 States v. Geddes, 180 Fed. 480. Fed. Rep. 452 ; 65 C. C. A. 320. In this case the court distinguishe9 See also United States v. Chicago. it from the case of Cincinnati, etc., R. Co. 81 Fed. Rep. 783, and N. O. & T. P. Ry. Co. v. Inter. Interstate Commerce Commission Com. Commission, 162 U. S. 193; V. Bellaire, etc., R. Co. 77 Fed. Rep. 16 Sup. Ct. 700; 40 L Ed 935. 942. At a latter date the same The ease of United States v. result was reached in another case Geddes, supra is discussed and against the same railroad company denied in Sec. 176. upon exactly similar facts. United 272 FEDERAL SAFETY APPLIANCE ACT. and carried upon a continuous passage from the point of origin to its destination at the station of the narrow gauge. The shipment was re-billed by the narrow gauge road from the point it received it to its place of destination on its line, and it advanced the freight ehrvges for the previous transportation, collecting them of the consignee on deliver- ing the goods. The broad gauge and narrow gauge roads, at their point of contact, had a platform for their common use, for the purpose of receiving goods on one side of it and loading on the other, in this way making an exchange of goods carried by them respectively. It was held that this narrow gauge road was subject to the federal statute and must equip its cars with automatic brakes. Judge Sanborn relied upon the celebrated case of The Daniel Ball.^^ That was a case to recover a penalty in a suit brought b.y the United States for navigating Grand river in the state of ]\Iichigan without a license. The defense was that the boat was not engaged in trade or commerce between two or more states, but was employed solely in intrastate commerce. It was agreed that the vessel was operated entirely within the state of Michigan between Grand Rapids and Grand Haven, and that it did not run in connection with, or in continua- tion of, any line of steamers or vessels on the lake, or any line of railway in the state, but that it was a common carrier between these two cities, and "that some of the goods that she shipped to Grand Rapids and carried to Grand Haven were destined and marked for places in other states than Michigan, and that some of the goods which she shipped at Grand Haven came from other states and were destined for places within that state." Judge Sanborn, from this ques- tion, reached the conclusion that "the power to regulate interstate commerce is as complete upon the land as upon the navigable waters of the nation, and congressional regulation 39 10 Wall. 5.57; 10 L. Ed. 909; reversing ]'.rowTi, Admr., Cas. 193; Fed. Cas. No. 3.564. USE IN INTERSTATE TRAFFIC. 273 upon the former must be interpreted by the same rules and enforced with the same efficiency as like regulations upon the latter.*'' The plain and specific declaration of the acts of Congress before us, which have been recited,*^ and the familiar rule that where the terms of a statute are unam- biguous and their meaning is plain there is no room for construction, and the apt and controlling opinion of the Su- preme Court in the Daniel Ball case*- which decided, in a case strictly analogous, the material legal questions in this case, urgently persuade that the Northw^estern Company*^ was a common carrier engaged in interstate commerce by railroad within the meaning of the Safety Appliance Acts, and was thereby required to equip its cars with automatic couplers. ' ' ** Nor can a railroad urge that it hauled the car the distance it did in order to reach its general repair shops, if it could have repaired the car at nearby points.*^ § 176. United States against Geddes denied.— In the case of the United States against Colorado and Northwestern 4rt Citing In re Debs, 158 U. S. nation from San Jose to 'Careaga. 564; 15 Sup. Ct. Rep. 500; 39 L. It was held that the traffic beinur Ed. 1092. carried from San Jose to Careaga 41 Safety Appliance Act, p. 2G4. was interstate. United States v. 42 10 Wall. 557. Pacific Ry. Co. (see Appendix G). 43 The narrow gauge railroad. The statut-e applies to a rail- 44 United States v. Colorado, etc., road in South Carolina author- R. Co. 157 Fed. Rep. 321; United ized by its special charter to States V. Colorado, etc., R. Co. "farm out" the rights of transpor- 157 Fed. Rep. 342. tation. Harden v. North Cai-olina 45 United States v. Chicago, etc., R. Co. 129 N. C. 354; 40 S. E. Ry. Co. 149 Fed. Rep. 486. See Rep. 184; 55 L. R. A. 784. also Pacific Coast Ry. Co. v. United Under the Massachusetts stat- States, 173 Fed. 448. ute, a car en route to a repair A shipment from a point with- shop does not come within the out the State of California was statute prohibiting the "moving consigned to San Jose in that of traffic" in cars not equipped state. Before tlie shipment reached with automatic couplers. Taylor the state, and while in transit, the v. Boston, etc., R. Co. 188 Mass. consignor, by agreement with one 390; 74 N. E. Rep. 591. of the carriers, changed the desti- 274 FEDERAL SAFETY APPLIANCE ACT. Railroad Compain-/'^ Judge Sanborn of the Circuit Court of Appeals of the Eighth Circuit examines at length the case of the United States against Geddes " of the Circuit Court of Appeals of the Sixth Circuit and declines to follow it. "We set out the review of that case to the full extent as made by Judge Sanborn, viz: "The argument of counsel for the company, in support of the construction adopted by the Court of Appeals of the Sixth Circuit, is (1) that the part of the first section of the 'interstate commerce act' quoted above, constituted a new and exclusive definition of carriers engaged in interstate commerce; (2) that ]\Ir. Justice Shiras in Texas and Pacific Ey. Co. v. Interstate Commerce Com- mission,'*'^ in speaking of this act, said: 'It would be diffi- cult to use language more unmistakably signifying that Congress had in view the whole field of commerce (except- ing that wholly within a state) as well that between the states and territories as that going to or coming from foreign countries'; (3) that if that statement was accurate, then to be a 'common carrier engaged in interstate commerce by railroad' within the meaning of the Safety Appliance Act of 1893, which was enacted six years later, a railroad must be 'engaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water when both are used, under a common control, man- agement or arrangement for a continuous carriage or ship- ment' from one state to another; (4) that Congress sought to regulate interstate commerce by each act and that having defined interstate commerce ni the first act, the words 'any common carrier engaged in interstate commerce' in the sub- sequent Safety Appliance Acts were restricted to those car- riers specified in that definition, and included only such as were so engaged with others under a connnon control, man- "L57 Fed. Hop. 32L 102 U. S. 107, at p. 212; 10 Sup. «M31 Fed. Rop. 452; 05 C. C. Ct. GOG, at p. 672 (40 L. Ed. A. 320. 940 ) ; reversing 4 Inter. St. Com. "Texa.s & Pacific Ry. Co. V. In- Rep. 408; 6 C. C. A. G53 ; 20 terstate Commerce Commission, U. S. App. 1 ; 57 Fed. Rep. 948. USE IN INTERSTATE TRAFFIC. 275 agement or arrangement for a continuous passage or shipment; and (5) that any other construction would compel railroad companies operating in single states, to which arti- cles of interstate commerce that they might not lawfully refuse to carry were tendered for transportation, to comply with the Safety Appliance Acts, and would thereby draw all commerce under national regulation. A careful study of this argument in all its branches has brought to mind some reasons why it is not convincing, which will be briefly stated. The major premise of the argument is that Con- gress by the act of 1887, made an authoritative definition of carriers engaged in interstate commerce by railroad and partly by railroad and partly by water, to which subsequent legislation and decision is subject; that after the passage of that act no carrier by railroad and no carrier partly by railroad and partly by water, who conducted within a single state a part of the continuous transportation of articles of interstate commerce, was engaged in that commerce, unless it conducted that carriage with some other carrier under a common control, management or arrangement for a con- tinuous carriage or shipment. Is this the true construction and effect of the first section of the interstate commerce act of 1887 ? When Congress passed that statute, conclusive de- cisions and universal assent had established the rule of law that common carriers engaged entirely within a single state in the transportation of articles of interstate commerce in- cluded two classes: (a) Those who conducted that trans- portation with another or other carriers under a common control, management or arrangement for a continuous car- riage or shipment; and (6) those who conducted such trans- portation alone, or with other carriers without any common control, management or arrangement for such a carriage or shipment. The question whether or not carriers of the sec- ond class were engaged in interstate commerce was settled.^^ It was not acute, debatable or open, and the purpose of the *'The Daniel Ball, 10 Wall. Brown, Admr., Cas. 193; Fed. Cas. 55 5G5; 19 L. Ed. 999; reversing No. 3,564. 276 FEDERAL SAFETY APPLIANCE ACT. act of 1887 was not to answer it. If it had been the inten- tion of Congress and the meaning of that act that the established rule of law upon that question should be abro- gated, that a new definition of carriers engaged in inter- state commerce should be made which would imperatively exclude the second class from interstate commerce, it is rea- sonable to believe that the law making body would have made this purpose to cause so radical a departure from the law of the land clear and indisputable by a direct declara- tion and enactment which could easily have been written in a few lines, that henceforth carriers engaged in interstate commerce by railroad should include those of the first class only, or that they should exclude those of the second class. But the act contains no such declaration or provision. On the other hand, in the face of the established rule of law that carriers by railroad engaged in interstate commerce consisted of both classes, the Congress enacted that 'the pro- visions of this act shall apply to' the members of the first class, and there it stopped and enacted nothing more perti- nent to this issue. The existence of the two well known classes of carriers engaged in interstate commerce, the ab- sence of any declaration or enactment that the rule which included the members of both classes among such carriers should be abrogated or in any way modified, and the simple declaration of the act that its provisions should apply to the members of the first class without more upon this subject, render it difficult to believe that the purpose or efi'ect of the first section of this statute was any other than to select out of all the carriers engaged in interstate commerce by rail- road or partly by railroad and partly by water, and to speci- fy, as its clear and certain words purport to do, the class of those carriers to which its provisions apply. The remark of Mr. Justice Shiras in Texas and Pacific Ry. Co. V. Interstate Commerce Commission,^" Avith reference to the interstate commerce act. that 'It would be difficult to use ~102 U. S. 212; 16 Sup. Ct. 072 (40 L. Ed. 940). USE IN INTERSTATE TRAFFIC. 277 language more unmistakably signifying that Congress had in view the whole field of commerce, excepting commerce wholly within a state,' is not persuasive upon the legal issue before us (a) because this question was not presented, dis- cussed, or decided in that case, wherein the court was con- sidering only the relation of the circumstances, conditions and rates of transportation of foreign commerce to the cir- cumstances, conditions and rates of transportation of inter- state commerce under the act of 1887, and expressions in the opinion of courts are not authoritative beyond the ques- tions which they were considering and deciding when they used them.°^ (h) Because the statement that Congress had in view the whole field of interstate commerce when it passed this act is far from an assertion, and could never have been intended to be a declaration that Congress had regulated, or had intended by that act to regulate, every carrier engaged in interstate commerce within its regulating power, for that was obviously not the fact. It did not regulate and evi- dently did not intend to regulate carriers engaged in the transportation of subjects of interstate commerce by stage coach, by wagon, entirely by water, or such carriers partly b.v water and partly by railroad, when they were not oper- ating with other carriers under a common control, manage- ment or arrangement; (c) because the statute expressly declared that the provisions of the act should apply to the members of a specific class of carriers engaged in interstate commerce, and omitted, and thereby excluded from subjec- tion to its provisions, those of other classes. The amenda- tory act of June 29, 1906,'^- is a demonstration that the original act was not intended to and did not regulate all common carriers engaged in interstate commerce by railroad within the power of Congress, for the amendment applies the provisions of the act to common carriers engaged in in- terstate commerce wholly by railroad who are exempt from =1 Cohens v. Virginia, 6 Wheat- "34 Stat. 584, c. 3591, Sec. 1 on, 264, 299; 5 L. Ed. 257. (U. S. Comp. St. Supp. 1907, p. 892). 278 FEDERAT, S \FETY APPLIANCE ACT. any common control, management or arrangement with other carriers, and applies its provisions to many other carriers not subject to the terms of the original act. The rule in jmri materia, which counsel for the company invoke, the rule that the similar terms of statutes enacted for like purposes should receive like interpretations, is inapplicable to the in- terstate commerce act and the Safety Appliance Acts, be- cause the provision of the latter relative to the question before us, is plain and explicit, and a statute falls under that rule only when its terms are ambiguous or its signifi- cance is doubtful,''''^ and because the evils to be remedied, the objects to be accomplished, and the enactments requisite to attain them are radically different. It is true that each act was a regulation of interstate commerce, but so are the Sher- man anti-trust act, the employers' liability act, the vari- ous acts regulating the inspection of steamboats, and the navigation of the inland rivers, lakes and bays^ and many other acts, too numerous to mention or review. It does not follow from the facts that the interstate commerce act was first passed, and that it regulates commerce among the states, and declares that its provisions shall apply to the mem- bers of a certain class of carriers engaged therein, that the Sherman anti-trust act, the Safety Appliance Acts, and other subsequent acts regulating commerce apply to the members of that class only, in the face of the positive declarations of the later acts that they shall govern other parties and other branches of commerce. The subject of the first act was the contracts, the rates of transportation of articles of interstate commerce; the subject of the Safety Appliance Acts was the construction of the vehicles, the cars, and engines which carry that commerce. The evils the former was passed tb remedy w^ere discrimination and favoritism in contracts and rates of carriage; the evils the latter was enacted to diminish were injuries to the employes of car- riers by the usa of dangerous cars and engines. The remedy "Endlic'h on Tntorprotation of Statutes, 8pc. 5.3 p. 67. USE IN INTERSTATE TRAFFIC. 279 for the mischiefs which induced the passage of the former act was equality of contracts and rates of transportation; the remedy for the evils at w^hich the latter act was leveled was the equipment of cars and engines with automatic couplers. Neither in their subjects, in the mischiefs they were enacted to remove, in the remedies required, nor in the remedies provided, do these acts relate to similar matters, and the rule that the words or terms of acts in 2^a>'i materia should have similar interpretations ought not to govern their construction. The contention that if a railroad company conducting the transportation of articles of interstate com- merce entirely wnthin a single state and independent of other carriers, is held to be subject to the Safety Appliance Acts, it must receive articles of interstate commerce for trans- portation, and all carriage, both interstate and intrastate, will thus become subject to national regulation, neither ter- rifies nor convinces. The constitution reserved to the nation the unlimited powder to regulate interstate and foreign com- merce, and if that powder cannot be effectually exercised without affecting intrastate commerce, then Congress may undoubtedly in that sense regulate intrastate commerce so far as necessary, in order to regulate interstate commerce fully and effectually. The peaple of the United States carved out of their sovereign po.wer, reserved from the states, and granted to the Congress of the United States exclusive and plenary power to regulate com-merce a^nong the states and with foreign nations. That p.ower is not subordinate, but it is paramount to all the powers of the states. If its independent and lawful exercise of this congressional power and the attempted exercise by a state of any of its powers impinge or conflict, the former must prevail and the latter must give way. The constitution and the acts of Congress passed in pursuance thereof are th'e supreme law^ of the land. 'That which is not supreme must yield to that which is su- preme. ' ^* It was the evident and declared purpose of the "Brown v. Maryland, 12 Wheat. v. Ogden, 9 Wheat. 1, 209, 210; 419, 448; 6 L. Ed. 678; Gibl>ons 6 L. Ed. 23; Gulf, Colorado, etc.. 280 FEDERAL SAFETY APPLIANCE ACT. Safety Appliance Acts to require every common carrier en- gaged in interstate commerce, and hence every common car- rier so engaged independently in a single state, to comply with the requirements of the statute. No greater 'ourden is thereby imposed upon a company engaged in such commerce \Wthin one state than upon one so engaged in more than one state. There was as urgent a demand, and as much reason and necessity, for the protection of the lives and limbs of the servants of railroad companies operating in a smgle state, as of preserving the lives and limbs of the servants of such companies operating across state lines. The Safety Appliance Acts might be practically evaded and thus ren- dered futile if companies independently transporting articles of interstate commerce in single states could exempt them- selves from their provisions by conducting all such transpor- tation, except that across the imaginary lines which di^dde the states, by means of corporations operating in single states only, and finally the objection here under consideration was determined to be untenable by the controlling opinion of the Supreme Court in the Daniel Ball case.'''' where it was equally available, was considered and overruled, for Congress has the Ry. Co. V. Hefley, 158 U. S. 98; 125 U. S. 4()5, 479, 480, 481, 484, 15 Sup. Ct. 802- 39 L. Ed. 910; 485, 488, 489, 490, 491, 507, 508; Int. State Commerce Com. v. De- 8 Sup. Ct. 689, 10G2; 31 L. Ed. troit, etc., Ry. Co. 167 U. S. 633, 700; Welton v. Missouri, 91 U. S. 642; 17 Sup! Ct. 986; 42 L. Ed. 275, 280; 23 L. Ed. 347; Lyng v. 306; State Freight Tax Case, 15 Michigan, 135 U. S. 161, 166; 10 Wall. 232, 275, 280; 21 L. Ed. Sup. Ct. 725; 34 L. Ed. 150; Nor- 146; Pensacola Telegraph Co. v. folk, etc., Ry. Co. v. Pennsylvania, Western Union Telegraph Co., 96 136 U. S. il4, 115, 118, 120; 10 U. S. 1, 8; 24 L. Ed. 708; Chy Sup. Ct. 958; 34 L. Ed. 394; Lung V. Freerian, 92 U. S. 275, Crutcher v. Kentucky, 141 U. S. 280; 23 L. Ed. 550; Ry. Co. v. 47, 57, 58, 59; 11 Sup. Ct. 851; Husen, 95 U. S. 465, 471, 472, 473; 35 L. Ed. 649; Osborne v. Flor- 24 L. Ed. 527: Hall v. De Cuir. 95 ida, 164 U. S. 650, 655; 17 Sup. U. S. 485, 488-490, 497, 498-513: Ct. 214; 41 L. Ed. 586; Caldwell U. S. 485.488-490.497,498-513; 24 v. North Carolina, 187 U. S. 622, L. Ed. 547: Cooper Mfg. Co. v. 623; 23 Sup. Ct. 229; 47 L. Ed. Ferguson. 113 U. S. 727. 736, 737; 336. 5 Sup. Ct. 739; 28 L. Ed. 1137; ■>= 10 Wall. 565; 19 L. Ed. 999. Bowman v. Chicago, etc., Ry. Co. USE IN INTERSTATE TRAPPIC. 281 same 'fulness of control' over interstate commerce carried upon railroads and other artificial highways upon the land that it has over that borne upon the navigable waters of the nation.^^ Some of the reasons why the argument of counsel in support of the construction of these acts which they seek, has not proved convincing, have now been stated. There are, however, other and controlling considerations which deter us :ftrom the conclusion they urge. Congress enacted that 'it shall be unlawful for any common carrier engaged in inter- state commerce by railroad' to haul any car on its line, used in moving interstate traffic, unequipped with automatic couplers, except four-wheeled cars and certain logging cars and the engines which draw them. The construction of this enactment sought in effect amends this positive declaration by importing into it the exception which appears in italics below, so that it would read, 'it shall be unlawful for any common carrier engaged in interstate commerce by railroad, * * * except a common carrier engaged in interstate com- merce by railroad icholly within a single state and not under a common control, management or arrangement with any other carrier for a continuous carriage or shipment' to haul any car on its line used in moving interstate traffic un- equipped with automatic couplers, except four-wheeled cars and certain logging cars and the engines used to haul them. But where the Congress makes no exception from the clear and certain declaration of a statute, there is ordinarily a presumption that it intended to make none.^' B}^ so much the more is it true that where the lawmaking body has made exceptions to the general terms of an act, as in this instance, the presumption is that it intended to make no more. Again, if Congress intended to make this exception, it was a secret intention which the Safety Appliance Acts not only failed to ^«/n re Debs, 158 U. S. 590, Ed. 242: Vance v. Vance, 108 U. 591; 15 Sup. Ct. 900; 39 L. Ed. S. 514, 521; 2 Sup. Ct. 854; 27 1092. L. Ed. 808; Railway Co. v. ^'Mclver v. Ragan, 2 Wheat. B'Shears, 59 Ark. 237, 244; 27 25, 29; 4 L. Ed. 175; Bank v. S. W. 2. Dalton, 9 How. 522, 528; 13 L. 282 FEDERAL SAFETY APPLIANCE ACT. express, but which their terms expressly negatived. It is the intention expressed, or necessarily implied, in the law, and that alone, to which courts may lawfully give effect. They may not assume or presume purposes and intentions that are neither expressed or implied, and then construe into the law the provisions to accomplish these assumed intentions. A secret intention of the lawmaking body cannot be legally in- terpreted into a statute which is plain and unambiguous, and which does not express or imply it.-"'^ The principal reasons which have been persuasive in the determination of the ques- tion in hand have now been stated. They have been pre- sented at considerable length in deference to the opinion of the Court of Appeals of the Sixth Circuit in the Geddes case, which it would have been a pleasure to follow, if the proper result had been doubtful in our opinion. But this case has been presented to this court for decision. The exercise of its independent judgment has been invoked, and it may not be lawfully denied. The positive and explicit declaration of the first section of the Safety Appliance Act of 1893 that ' it shall be unlawful for any common carrier engaged in interstate commerce by railroad' to use any cars unequipped with auto- matic couplers except four-wheeled cars and logging ears in moving interstate traffic, the clearness and certainty of this language which prohibits interpretation, the absence of any expression of the exception -which the court is asked to im- port into this statute, the presumption from the plain lan- guage of the law that the Congress intended to make no such exception, the rule that the courts may not insert in a statute an enactment of an assumed secret intention of the lawmaking bodv M'hich is not expressed therein or necessarily implied, the fact that the interstate commerce act does not appear to us to define common carriers engaged in interstate commerce by railroad, ])ut simply to api)ly the ])rovisions of that act to ^V. R. V. Wiltberger, 5 Wheat. 05 Am. Dec. 152; Smith v. State, 7fi: 5 L. Ed. 37: Bonnett v. 60 Md. 215; 7 Atl. 40; Railway Wortliinprton, 24 Ark. 487, 404; Co. v. Bagley, (iO Kan. 424; 56 Tynan v. Walker, 35 Cal. 634; Pac. 759. USE IN INTERSTATE TRAFFIC. 283 the members of a specified class of these carriers, the fact that the interstate commerce act is not in pari nubteria with the Safety Appliance Acts, either in its subject-matter, in the evils it assails, or in the remedies it provides, so that neither its lan^age nor the construction thereof is apposite to or controlling of the terms or of the interpretation of the latter act, the reason of the case which as imperatively requires the protection from dangerous vehicles of the employes of com- panies independently engaged in interstate commerce by railroad entirely within single states, as it does the protection of the servants of other companies employed in the trans- portation of articles of interstate commerce by railroad, all these and other facts, rules and reasons to which reference has been made, have converged upon our minds with com- pelling power, and forced them to the conclusion that Congress did not intend to, and did not except from the pro- visions of the Safety Appliance Acts common carriers en- gaged in the transportation of articles of interstate commerce entirely within single states respectively, and exempt from any common control, management or arrangement with other carriers for a continuous carriage or shipment, but that it in- tended to, and did, expressly include them therein and sub- ject them thereto.""^ § 177a. Effect of the case of Southern Railway Co. against United States on Geddes and Colorado cases. — Nat- urally one inquires how^ far the case of Southern Railway Company ^^^ has affected either the case of United States against Geddes ^^^ or that of United States against Colorado, etc., Railway Company,^®" or whether that case has any bearing upon the other two. The sole question is w^hether or not the facts, which are practically identical, detailed in the two cases show a transaction in interstate commerce. 59 United States v. Colorado, '9a Discussed at length in section etc., Ry. Co. 157 Fed. 321. In this 159. case a certiorari was denied to the ^^^ Discussed in section 175. defendant. 209 U. S. 544. =9c Discussed in section 176. 284 FEDERAL SAFETY APPLIANCE ACT. In the one case the court says they do not, in the other that they do. That is the only question at issue between them. In a later case (or perhaps the same case), the Federal Court for one of the districts of Ohio admits that if the traffic had been carried over the narrow gauge road by through waybills, and it had received its due proportion of the freight charges for the entire distance carried, the transaction would have been one of interstate commerce."®'^ Did the break in the transportation of the traffic, after it had reached the state of its destination, change an inter- state carriage into an intrastate carriage was the question at issue between these two cases. But the United States Supreme Court has in a way solved the question. If the company owning the narroAv gauge railroad had so used it that it had become "a highway of interstate commerce," then it is immaterial that the particular transaction under consideration was or was not an instance of interstate com- merce. Proof of that particular transaction wovild only be for the purpose of showing that it was "a highway of inter- state commerce," or devoted to the business of carrying traffic in interstate commerce. But if the only instances shown were the two detailed in the two opinions in those two cases, then the question would still remain whether or not the evidence was sufficient to show that the railroad line was "a highway of interstate commerce," — whether a single transaction in interstate commerce over a line of railroad is sufficient to show "^"^ that it is "a highway of interstate com- fisd United States v. Geddes, 180 injury to hold the railroad coni- Fed. 480, following in this conclu- pany amenable to the Federal Sufo- sion, Cincinnati, X. 0. & T. P. Ry. ty Appliance Act. Felt v. Denver Go. V. Interstate Commerce Com- & R. G. R. Co. 48 Colo. 240; 110 mission, 1G2 U. S. 193; 16 Sup. Pac. 215. The soundness of this Ct. 700; 40 L. Ed. 935. case, however, is very questionable. •"'^e It has been held by a state for by such use of tlie railroad Hue court that the mere fact a railroad did not the company make it "a lias frequenth' hauled interstate hifjhway of interstate commerce?" traffic is not sullicient in an action Of course the Colorado case just to recover damages for a personal cited was decided before t!ie roce it USE IN INTERSTATE TRAFFIC. 285 meree." There are a number of decisions which prac- tically hold, and it is usually admitted, under the old interpretation of the statute, that a single package of interstate traffic put aboard a loaded or unloaded freight train will convert the whole train into one of interstate commerce ; and if that be true, it is difficult to see why proof of a single transaction of interstate commerce, or carriage of traffic in interstate commerce, is not sufficient to show that the line of railroad was not "a highway of interstate com- merce," if the carriage occurred shortly before the date of the commencement of the action wherein it is necessary to show that the railroad line falls within the provisions of the Safety Appliance Act. § 178. Burden — Reasonable doubt. — What is interstate commerce htis been discussed in other sections. He who al- leges that the car causing the injury by reason of defective coupling, or rather by a failure to comply with the statute with regard to automatic coupling, has the burden to i)rove that the car at the time was used in interstate commerce,*" case of tlie Supreme Court of the Louisville, etc., K. Oo. 162 Fed. United States as set forth in sec- Rep. 185; United States v. Phila- tion 159. In the light of this delphia, etc., R. Co. 160 Fed. Rep. recent case of the United States 696; 162 Fed. Rep. 403; United Supreme Court, the soundness of States v. Pennsylvania R. Co. 162 the case of Camphcll v. Chicago. R. Fed. Rcj). 408 ; United States v. I. & P. Ry. Co. 14!) 111. App. 120. Philadelpliia, etc., R. Co. 162 Fed. affirmed 24.3 111. 620; 90 N. E. Rep. 405; United States v. Lcliigli 1106, is doubtful. Valley R. Co. 162 Fed. Rep. 410. 60 United States v. Illinois Cen- j^ ^ prosecution to recover the tral R. Co. 156 Fed. Hep. 182; penalty for the violation of tlie United States v. Central of Ga. statute within a territory, it is Ry. 157 Fed. Rep. S93; Kansas j,ot necessary to prove that the City, etc., R. Co. v. Flippo, 138 defendant was engaged in inter- Ala. 487; 35 So. Rep. 457; Mis- ^^^^^ commerce, neitlier is it nec- souri Pacific R. Oo. v. Kennat gssary to show that the car itself (Kan.) 9J Pac. Rep. .-63; United ^^^^ engaged in such commerce. States V. Chicago, etc., R. Co. 162 United States v. Atchison, etc., R. Fed. Hep. 775; United States v. Co, (gee Appendix G). 286 FEDERAIi SAFETY APPUANCE ACT. or was hauled in an interstate commerce train.^°* In the case of an empty car hauled in a train, it must be shown that it was used or was intended to be used in moving inter- state tratific. In a criminal case it has been held that this must be shown beyond a reasonable doubt. ''^ Of course, in a civil case the doctrine of reasonable doubt is not involved. Nearly three years before these cases first cited had been decided the Supreme Court of the United States had said in a civil case: "But the design to give relief was more dominant than to in- flict punishment, and the act might be held to fall within the rule applicable to statutes to prevent fraud upon the revenue, and for the collection of customs, that rule not re- quiring absolute strictness of construction."®- The first case cited in this section was in the District Court for the Western District of Kentucky. A month before it was de- cided the judge of the District Court for the Northern Dis- trict of Alabama charged the jury as follows: "The burden is upon the government to make out its case to a reasonable certainty — that is, to your reasonable satisfaction — by a pre- ponderance of the evidence. If you find, therefore, from a preponderance of the evidence in this case that the defendant was a common carrier engaged in interstate traffic by rail- road, and that it hauled in interstate traffic the cars named in the petition, when said ears were in such condition that, in order to operate the coupling or uncoupling mechanism thereon, it was necessary for an employe to go between the ends of the cars, you will render your verdict for the plain- tiff. If 3^ou do not so find, you will render your verdict for «o* Elgin, etc., R. Co. v. Unitetl 158, reversing 117 Fed. Rep. 462; States, 1(>8 Fed. Rep. 1 (de- 54 C. C. A. 508; citing Taylor v. cided February 3, 1909); United United States, 3 How. 197; 11 L. States V. Chicago, etc., R. Co. 162 Ed. .'i59; United States v. Stow- Fed. Rep. 775. ell, 133 U. S. 1 : 10 Sup. Ct. Rep. "United States v. Illinois Cent. 244; 33 L. Ed. 555: Fanners, etc., R. Co. 156 Fed. Rep. 182. Bank v. Dearing. 91 U. S. 29; 23 "Johnson V. Southern Pac. Ry. T- Kd. 196; Gray v. Bennett, 3 Co. 196 U. S. 1 ; 25 Sup. Ct. Rep. Met. 522. USE IN INTERSTATE TRAFFIC. 287 the defendant. By a preponderance of the evidence, you are not to understand that the government must make out its case beyond a reasonable doubt. It is sufficient if you are satisfied in your own mind from all the evidence that the de- fendant did the act complained of. ""^ In other cases it has been held that the government must prove its case beyond a reasonable doubt.*'* But now the great weight of authority is that the government need not prove the case beyond a reasonable doubt, it being sufficient if it furnishes ekar and satisfactory evidence of all the necessary facts.^^ In all the later cases it is held that the action to recover the penalty in- curred by a failure to properly equip a ear is a civil and not a criminal action. 63 United States v. Central of Ga. Ry. Co. 157 Fed. Rep. 803. "i^ United States v. Louisville, etc., R. Co, 156 Fed. Rep. 193; United States v. Louisville, etc., R. Co. 156 Fed. Rep. 195; United States V. Illinois Cent. R. Co. 156 Fed Rep. 182. Of course the Government must shovv that the defective car was used in interstate commerce. Ros- ney v. Erie R. Co. 135 Fed. Rep. 314; 68 C. C. A. 155, or upon a railroad devoted to a highway of interstate commerce, section 159. 65 United States v. Lehigh Val- ley R. Co. 162 Fed. Rep. 410 (see Appendix G, p. 311); United ^States V. Philadelphia, etc., R. Co. 162 Fed. Rep. 405 (Appendix G, p. 315) ; United States v. Pennsyl- vania R. Co. 162 Fed. Rep. 408; United States v. Philadelphia R. Co. 160 Fed. Rep. 696; 162 Fed. Rep. 403; United States v. Louia^ ville, etc., R. Co. 162 Fed. Rep. 185; United States v. Boston & Maine R. Co. 168 Fed. 148, and Appendix G; United States v. Chi- cago, etc., R. Co. 173 Fed. 684 (see Appendix G) ; United States v. Atchison, etc., R. Co. 167 Fed. 696 (see Appendix G) ; United States v. Terminal R. Assn. ( see Appendix G) ; United States v. Nevada, etc., R. Co. 167 Fed. 695 (Appendix G). CHAPTER XI. CARS AND THEIR EQUIPMENT. SECTION. 179. What is a "car" within the meaning of the statute. Electric cars. Empty car — Car used, in moving interstate com- merce. Empty car used in inter- state train. Proviso to Section 6 — Four wheeled and logging cars. Kind of couplers to be used. Without the necessity of men going between the ends of cars. Both ends of every car must be equipped with auto- matic couplers. Uncoupling. Erroneous instructions con- cerning height of draw bars. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 19G. 197. 198. 199. Construction of Section 5. Insufficient operation of couplers. Inipix)perly operated if suf- ficient couplers. Preparation of coupler for coupling. M. C. B. defect cord. Receiving an improperly equipped car. Question for jury. When a Federal question ^s presented. State statute on same sub- ject applicable to intra- state commerce. Handholds — Through trains. Handholds on roof of car — Sill steps — Handbrakes — Ladders — E.unning boardsL § 179. What is a "car" within the meaning of the stat- ute. — The statute prohibits the use of "any car used in moving interstate traffic not equipped with couplers coupling automatically by impact," and the question has several times come before the courts, "What is a car within the meaning and import of the statute?" This question has been answered hy the Supreme Court of the United States where it was ashed with reference to a locomotive not having automatic couplers. It will be noted that the first section of the statute requires locomotives to be equipped with power driving-wheel brakes, and says nothing about automatic couplings. From this it was argued that the statute did not require such couplers 28& CARS AND THEIR EQUIPMENT. 289 upon a locomotive, because it was not a car, the statute having referred to locomotives in one section and cars in another. But the Supreme Court denied this contention. ' ' It is not to be successfully denied," said Chief Justice Fuller, "that they [locomotives] are so required if the words 'any car' of the said section were intended to embrace, and do embrace, locomotives. But it is said that this cannot be so because loco- motives were elsewhere in terms required to be equipped with power driving-wheel brakes, and that the rule that the expres- sion of one thing excludes another applies. This, however, is a question of intention, and as there was special reason for requiring locomotives to be equipped with power driving- wheel brakes, if it were also necessary that locomotives should be equipped with automatic couplers, and the word 'car' would cover locomotives, then the intention to limit the equip- ment of locomotives to power driving-wheel brakes, because they were separately mentioned, could not be imputed. Now, as it was necessary for the safety of employes in coupling and uncoupling that locomotives should be equipped with auto- matic couplers as it was that freight and passenger and din- ing cars should bt?, perhaps more so, as Judge Thayer suggests, 'since engines have occasion to make couplings more frequent- ly.' And manifestly the word 'car' was used in its generic sense. There is nothing to indicate that any particular kind of car was meant. Tested by context, subject-matter and ob- ject, 'any car' meant all kinds of ears running on the rails, including locomotives. And this view is supported by the dic- tionary definitions and by many judicial decisions, some of them having been rendered in construction of this act.^ The result is that if the locomotive in question was not equipped with automatic couplers the company failed to comply with ^Citing Winkler v. Philadel- Co. v. Crocker, 95 Ala. 412; phia, etc., R. Co. 4 Penn. (Del.) Thomas v. Georgia, etc., Co. 38 387; 53 Atl. Rep. 90; Fleming v. Ga. 222; Mayor, etc., v. Third Southern Ry. Co. 131 K C. 476; Ave. R. Co. 117 N. Y. 404, 666; East St. Louis, etc., Ry. Co. v. 22 N. E. Rep. 755; Benson v. Ry. O'Hara, 150 111. 580; 37 K E. Co. 75 Minn. 163; 77 N. W. Rep. Rep. 917; Kansas City, etc., R. 798. 290 FEDERAL SAFETY APPLIANCE ACT. the provisions of tlie act."' So the act applies to a dining car standing on a side track waiting to be hitched to a through train ;^ and also to a locomotive tender.* So the statute ap- plies to empty cars hauled in trains engaged in interstate commerce.^ It also applies to a steam shovel car while in transportation from one state to another ;<* and to a "shanty" car.'^ § 180. Electric cars. — It has been held that an electric railroad running its cars from one state to another were 2 Johnson v. Southern Pae. Co. 196_U. S. 1; 25 Sup. Ct. Rep. 158; reversing 117 Fed. Rep. 462; 54 C. C. A. 508; United States V. Central of Ga. Ry. Co. 157 Fed. Rep. 616: United States v. South- ern Pacific Co. 167 Fed. 699; United States v. Southern Ry. Co. 170 Fed. 1014; Sohlemmer v. Buf- falo, R. & P. Ry. Co. 205 U. S. 1; 27 Sup. Ct. 405; 51 L. Ed. 68; Chicago, M. & St. P. Ry. Cb. v. United States, 165 Fed. 423; United States v. Chicago, M. & St. P. Ry. Oo. 149 Fed. 486. But it has been held that a locomotive need not have an auto- matic coupling at its front end. Wabash R. Co. v. United States, 172 Fed. 864. See Briggs v. Chi- cago & N. W. Ry. Co. 125 Fed. 745. 3 Johnson v. Southern Pac. Ry. Oo. supra; reversing 1'17 Fed. 462; 54 C. C. A. 508; Winkler v. Phil- adelphia, etc., R. Co. 4 Penn. (Del.) 80; 53 Atl. Rep. 90; Phil- adelphia, etc., R. Co. v. Winkler, 4 Penn. (Del.) 387; 56 Atl. Rep. 112. 4 Winkler v. Philadelphia, etc., R. Co. 4 Pennewill (Del.), 80; 53 Atl. Rep. 90; Philadelphia, etc., R. Co. V. Winkler, 4 Penn. (Del.) 387; 56 Atl. Rep. 112; Flemin;^ V. Southern Ry. Oo. 131 N. C. 470; 42 S. E. Rep. 905; 132 N. E. 714; 44 S. E. Rep. 551; United States V. Central of Ga. Ry. Co. 157 Fed. Rep. 616. A "tender" is not a "oar" under the Micliigan statute. Blanchard V. Detroit, etc., R. Co. 139 Mich. 094: 103 N. W. Rep. 170; 12 Det. Leg. N. 30; nor under the Massa- chusetts statute. Larabee v. New York, N. H. & H. R. Co. 182 Mass. 348; 66 K E. 1032. sMalott V. Hood, 201 III. 202; 66 N. E. Rep. 247; affirming 99 111. A pp. 360; Voelker v. Chicago, etc., R. Co. 116 Fed. Rep. 867; United States v. St. Louis, etc., R. Co. 154 Fed. Rep. 516; United States v. Illinois Cent. R. Oo. 156 Fed. Rep. 182; United States v. Chicago, etc., Ry. Co. 156 Fed. Rep. 616. 6 Schlemmer, 205 U. S. 1 ; 27 Sup. Ct. Rep. 407; -511 L. Ed. 681; reversing 207 Pa. St. 198; 56 Atl. Rep. 417; Chicago, M. & St. P. Ry. Oo. v. United" States, 165 Fed. 423; United States v. Chicago ^ Pa. St. r98; 56 Atl. Rep. 417; Co. 163 Fed. Rep. 519; Smith \. United States v. Atlantic, etc., R. United States, 157 Fed. Rep. 721; Co 153 Fed. Rep. 918; Ryan v. 85 C. C. A. — ; United States v. Carter, 03 U. S. 78; United States Atlantic, etc., R. Co. 153 Fed. Ra,). V. Dixon, 1'5 Pet. 141; Interstate 918. Commerce Commission v. Bair I, 294 FEDERAL SAFETY APPLIANCE ACT. ply with the acts of Congress, and was unlawful;" '* the in- struction was held to be a correct statement of the require- ment of the statute, the court saying: "The true intent and meaning of the statute is not merely that the cars, etc., used in moving interstate commerce shall be equipped with auto- matic couplers of the description therein mentioned, but also that such couplers shall be in such condition as to be used automatically wdiile such cars are so engaged. "^^ Of course, the person alleging that a car was inadequately equipped has the burden to show that as a fact ;^^ and evidence merely of a defect in the coupler will not sustain the averment that the cars were not equipped with automatic couplers.*^ Tf the lever of a car coupler will not lift the pin from the socket, 14 Winkler v. Philadelphia, eto , Ey. Co. 4 Penn. (Del.) 80; 53 Atl. Rep. 90; United States v. Southern Ry. Co. 135 Fed. Pvep. 122; United States v. Louisville, etc., R. Co. 162 Fed. Rep. 185; United States v. Philadelphia, etc., R. Co. ICO Fed. Rep. G06; 1G2 Fed. Rep. 403; United States v. Pennsylvania R. Co. 102 Fed. Rep. 408; United States v. Piiiladelpliia, etc., R. Co. 1G2 Fed. Rep. 405; United States v. Lehigh Valley, 162 Fed. Rep. 410; United States v. Atchison, etc., R. Co. 167 Fed. enc (Appendix G) ; United States v. Cliesapeake & Ohio Ry. Co. (see Appendix G); L'nited States v. Southern Pa.ci{ic Co. 167 Fed. 699 (see Appendix G). It has been said that the phrase "cars be uncoupled without the ne- cessity of men going between the ends of the cars" was merely de- scriptive of the equipment required, and does not import that it is the duty of the carrier to keep such equipment in repair at all events. L^nited States v. lUinoiS Central, 170 Fed. 542. 15 Philadelphia, etc., R. Co. v. Winkler, 4 Penn. (Del.) 387; 112 Atl. Rep. 56; Voelker v. Chica- go, etc., R. Co. 116 Fed. Rep. 867; Southern Rv. Co. v. Sim- mons, 105 Va. 6511; 55 S. E. Rep. 450: 44 Am. & Eng. R. Cas. 572; United States v. El Paso, etc. (see Appendix) ; Johnston v. Southern Pac. Co. 196 U. S. 1; 25 Sup. Ct. Rep. 158; 49 L. Ed. 363; reversing 54 C. C. A. 508; 117 Fed. Rep. 462 ; United States v. Chicago, etc., R. Co. 1-19 Fed. Rep. 486; Winkler V. Philadelphia, etc., Ry. Co. 4 Penn. (Del.) 387; 53 At k Rep. 90; L^nited States v. Atchison, T. & S. F. Ry. Co. 167 Fed. 696; United Str^.tos v. Southern Ry. Co. 167 Fed. 699. 18 Piiiladelphia, etc., Ry. Co. v. Winkler, 4 Penn. (Del.)' 387; 56 Atl. Rep. 112; United States v. Louisville & X. R. Co. 162 Fed. 185 ; United States v. Atchison, T. & S. F. Ry. Co. Appendix G; United States v. Illinois Central R. Co. 166 Fed. 997; United States V. Southern Ry. Co. 170 Fed. 1014. 17 ICansas City, etc., R. Co. v. Flippo, 138 Ala.' 487; 35 So. Rep. 457. CARS AND THEIR EQUIPMENT. 295 and the knuckle cannot bo flrnwn open hy leaninor toward the coupler and using one hand, hut to open it requires the pres- ence of the employes between the ends of the cars, and the use of both hands, thereby necessitating the placiirr of the entire body of the employe between the draw bars of the car, the coupler does not comply with the statute.^^ j^ ^j, ^^^ ^q_ fense, if a car is not properly equipped, to show that the adjoining car was not, thereby rendering it impossible to use the couplings.^*^* 18 Chicago, ete.j Ry. Co. v. Voel- ker, 129 Fed. Rep. 522; 65 C. C. A. 65; 70 L. R. A. 2(J4; s. c. 116 Fed. Rep. 867; United States v. El Paso R. Co. (Appendix G, pp. 274, 279) ; United States v, Nevada, etc., R. Co. 167 Fed. 695; Appendix G; United States v. Atchison, T. & S. F. Ry. Co. Ap- pendix G ; United States v. Indiana Harbor R. Co. 157 Fed. 565. The Canadian statute (55 Viet. Ch. 30, Sec. 3) prohibits cars having buffers of different heights, so that in coupling they overlap and afford no protection to the person making the coupling, being a "defect in the an-angement of the plant." Board v. Toronto "y. Oo. 22 Ont. App. 78, aflfinning 24 Can. Sup. Ct. 715. See, also, the Michigan statute. Betterly v. Boyne City, G. & A. R. Co. 158 Mich. 385; 122 N. W. 635; 16 Det. Leg. N. 628. Where the chain which con- nected the lock pin to the uncoup- ling lever wsls not attached and only need to be connected to make the appliance available, it was held that the car in such condition was out of repair, as it was not le- gally equipped until the chain was connected; and in the ab- sence of evidence showing that tlie chain was ever attached, it was presumed, since the working parts were in perfect order, that the apparatus was only partially completed and that it was the ultimate intention to connect the parts and to thereby comply with the provisions of the statute. United States v. Great Northern Ry. Co. 150 Fed. Rep. 229; United States v. Chicago, etc., K. Co. 149 Fed. Rep. 486; Donegan v. Baltimore, etc., R. Co. 165 Fed. Rep. 869. Clevis pin absent, pre- sumption. United States v. Atchi- son, T. & S. F. Ry. Co. Appendix G. Bull nose coupler. Philadel- phia & R. Ry. Co. v. Winkler, 4 Penn. (Del.) 387; 56 Atl. 112. Kinked chains. United States v. Denver & R. G. R. Co. 163 Fed. 519; United States v. Southern Pacific Co. 167 Fed. 699; Norfolk & W. Ry. Co. V. U. S., 191 Fed. 302. Chain connected with hand rail. United States v. Toledo Ter- minal R. Co. Appendix G. Worn out coupler. Voelker t. Chioawo, M. & St. P. Ry. Co. 116 Fed. 867. Inoperative coupler. Taggert v. Republic Iron & Steel Co. 141 Fed 910. 18* United States v. Atchison, etc., R. Co. (see Appendix G ) . If a servant of the company deliber- ately puts on an imperfect coui>- ling the company is still liable. United States v. Southern Pac. Co. 167 Fed. 699 (see Appen- dix G) ; Chicago, etc.. R. Co. v. King, 169 Fed. Rep. 372 (decided February 3, 1909). 296 FEDERAL SAFETY APPLIANCE ACT. § 185. "Without the necessity of men going between the ends of cars." — The words "without the necessity of men going between the ends of cars" applies more than to the act of coupling, "The phrase literally covers both coupling and uncoupling, and if read, as it should be, with a comma after the word 'uncoupled,' this becomes entirely clear." "In the present case the couplings would not work together, Johnson was obliged to go between the cars, and the law was not complied with."^' So the car must be equipped that it can be coupled from either side without going be- tween them to couple them ; and if so equipped that they can be coupled from one side without going between them and not from the other, the statute is not complied with.^'' If the tracks are so uneven or curved that two cars coming together will not couple by compact, then they are not equipped as the statute requires, although upon a level or straight track they would readily so couple.-^^ The coup- lings must be sufficient so the cars can be both coupled and uncoupled without the trainmen being under the necessity of going between the cars.-°^ If the cars be so loaded that 19 Johnson v. Southeni Pac. Ry. Gauge Co. 167 Fed. 695; Black- Co. 196 U. S. 1; 25 Sup. Ct. Rep. burn v. Cherokee Lumber Co. 152 158; reversing 117 Fed. Rep. X. C. 361: 07 S. E. 915; McGarvey 462 ; United States v. Central of v. Detroit, T. & I. Rv. Co. 83 Ohio Ga. Ry. Co. 157 Fed. Rep. 893; St. 273; 94 N. E. 424 (Ohio stat- Harden v. North Carolina R. Co. ute). 129 N. C. 354; 40 S. E. Rep. 184; 20 United States v. Central' of 55 L. R. A. 784; Chicago, etc., Ry. Ga. Ry. Co. 157 Fed. Rep. 893; Oo. V. Voelker, 129 Fed. Rep. Southern Ry. Co. v. Simmons, 105 522; 65 C. C. A. 65; 70 L. R. A. Va. 651; 55 S. E. Rep. 459; 44 264; United States v. Chicago, Am. & Eng. R. Cas. 572; United etc., Ry. Co. 149 Fed. Rep. 486; States v. Atchison, etc., R. Q>. Schlemmer v. BufTalo, etc., Ry. (Appendix G); United States v. Co. 205 U. S. 1; 27 Sup. Ct. Rep. I^uisville & X. R. Co. 162 Fed. 407; United States v. El Paso, 185 (see Suttle v. Choctaw, 0. etc., R. Co. (Appendix G). As to & G. R. Co. 144 Fed. 668; 75 the use of the comma in the stat- C. C. A. 470) ; Xorfolk &, W. Ry. ute, see also, United States v. Erie "Co. v. United States, 177 Fed. 623. R. Oo. 166 Fed. 352. See, also, 20a Hohenleitner v. Southern Pa- Norfolk & W. Ry. Co. V. United cific Oo. 177 Fed. 796. States, 177 Fed. 623; United 20b Southern Railway Co. v. Sim- States V. Nevada County Narrow mons (S. C.) ; 55 S. E. 459. CARS AND THEIR EQUIPMENT. 297 they cannot come together so as to couple by compact, they are not properly equipped.^"" § 186. Both ends of every car must be equipped with au- tomatic couplers. — A car is not properly equipped unless it is equipped ou both ends with automatic couplers. "The Safety Appliance Act requires that each coupler on a car be operative in itself, so an employe will not have to go to another car to couple or uncouple the car in question. The provisions as to coupling and uncoupling apply to the coupler on each end of every car subject to the law. It is wholly immaterial in what condition was? th^ coupler on the adjacent ear or anv other ear or ears to which each car sued upon was, or was to be, coupled. The eouipment on each end of these two cars must be in such condition that whenever called upon for use it can be onprated without the necessity of going be- tween the ends of the cars. This is the plain and unambiguous meaning of the statute." ^^ 20C United States v. Illinois Cen- tral R. Co. 177 Fed. 801. 21 Chicago, etc., Ry. Co. v. Voel- ker, 129 Fed. Rep. *522; 65 C. C. A. 65; 70 L. R. A. 264; United States V. Philadelphia & R. Ry. Co. 1-60 Fed. 6^6; United States V. Central of Georgia, 157 Fed. 893; United States v. Southern Pacific Co. 167 Fed. 699; United States V. Baltimore & 0. R. Co. 170 Fed. 456; United States v. Denver & R. G. Co. 163 Fed. 519; United States v. Wabash R. Co. Appendix G; United States v. Philadelphia & R. Ry. Co. Appen- dix G; United States v. Lehigh Valley R. Co. Appendix G; United States V. Pennsylvania R. Co. Ap- pendix G; United States v. Louis- ville & N. R. Co. 162 Fed. 185; United States v. Chicago Great W. Ry. Co. 162 Fed. 775; United States v. Atchison, T. & S. F. Ry. Co. Appendix Gj United States v. Nevada Cbunty, N. G. R. Co. 167 Fed. 695; United States v. Atchi- son, T. & S. F. Ry. Co. 167 Fed. 696; United States v. Chesapeake & 0. Ry. Co. Appendix G; United States v. Southern Pacific Co. 167 Fed. 699; United States v. Southern Ry. Oo. 170 Fed. 1014; United States v. Baltimore & O. R. Co. 170 Fed. 456; United States V. Pennsylvania R. Co. Appen- dix G; United States v. Southern Pacific Co. Appendix G. A man engaged in connecting or disconnecting air hose between the cars is engaged in coupling or uncoupling cars within the mean- ing of the statute, if it is necessary for him to connect or disconnect that hose in order to connect or diisoonnect the oars. United States V. Boston, etc., R. Co. 168 Fed. 148 (see Appendix G). The coupling must be in such a condition that it can be operated 298 FEDERAL SAFETY APPLIANCE ACT. § 187. Uncoupling. — The coupler must be sufficient to enable the employee to uncouple the ear without going be- tween the cars coupled, for that purpose.^^ If, therefore, a coupler couples hy impact, but cannot be uncoupled without the employee going between the cars, it is not sufScient.^^ § 188. Erroneous instructions concerning heighth of draw- bars.— Au instruction is erroneous which declares that the law requires draw bars of a fully loaded car to be of the height of thirty-one and one-half inches, and that if either of the cars causing the injury to the employe varied from the requirement the defendant railroad had failed in the perform- ance of its duty; especially where the evidence of the rail- road company showed that the draw bar of the fully loaded car was thirty-two and one-half inches in height. A verdict for the plaintiff on such a condition of the record cannot stand. And so it is error to refuse to charge the jury "that when one car is fully loaded and another car in the same train is only partially loaded, the law allows a variation of with a reasonable effort, and not Co. 1G2 Fed. Eep. 410 (Appen- by a great effort without going dix G) ; United States v. Chesa- between the cars. United States peake, etc., Ry. Co. (Appendix G) ; V. Atchison, etc., R. Oo. 167 Fed. United States v. Southern Pac. Ry. 696 (see Appendix G). Co. 167 Fed. 699 (Appendix G) ; 22 United States V. Chicago, etc.. United States v. Atchi'^on, etc., Rv. Co. 149 Fed. Rep. 486; United R. Co. 167 Fed. 696 (see Appen- States V. Great Northern Ry. Co. dix G) ; Norfolk & W. Ry. Co. 150 Fed. Rep. 229; United States v. United States, 177 Fed. 623; V. Southern Ry. Co. 135 Fed. Rep. United States v. Denver & R. G. 122; United ^States v. El Paso, Co. 163 Fed. 519; 90 C. C. A. 329; etc., R. Co. Appendix G. Johnson v. Southern Pacific, 196 23 United States v. Central of U. S. 1; 25 Sup. Ct. 158; 49 Ga. Ry. Co. 157 Fed. Rep. 893; L. Ed. 363; Chicago, M. & St. P. United States v. Pennsylvania R. Ry. Co. v. Voelker, 129 Fed. 522; Co. 162 Fed. Rep. 408 (Appen- United States v. Chicago, M. & dix G) ; United States V. Philadel- St. P. Ry. Co. 149 Fed. 486; phia, etc., R. Co. 162 Fed. Rep. United States v. Nevada Co. N. G. 408 (Appendix G); United States Ry. Co. 167 Fed. 695; Southern V. Philadelphia, etc., R. Co. 162 Ry. Co. v. Simmons, 105 Va. 651; Fed. Rep. 405 (Appendix G) ; 55 S. E. 459. United States v. Lehigh Valley R. CARS AND TITEIK EQUIPMENT. 299 full three inches between the center of the draw bars of such cars, without regard to the amount of weio:ht in the partially loaded car."-* So an instruction as follows is erroneous: "The court charges you that the act of Congress allows a variation in height of three inches between the centers of draw bars of all cars used in interstate commerce, regardless of whether they are loaded or empty, the measurement of such height to be made perpendicularly from the top of the rail to the center of the draw bar shank or draft line." ~^ § 189. Construction of Section 5. — The Supreme Court of the United States has thus construed Section 5 so far as it re- lates to couplings: "We think that it [Section 5] requires the center of the draw bars of freight cars used on standard gauge railroads shall be, Avhen the cars are empty, thirty- four and one-half inches above the level of the tops of the rails; that it permits, when a car is partly or fully loaded, a variation in the height downward, in no case to exceed three inches; that it does not require that the variation shall be in proportion to the load, nor that a fully loaded car shall exhaust the full three inches of the maximum permissible variation and bring its draw bars down to the height of thirty- one and one half inches above the rails. If a car, when unloaded, has its draw bars thirty-four and one-half inches above the rails, and, in any stage of loading, does not lower its draw bars more than three inches, it complies with the requirements of the law. If, when unloaded, its draw bars are of greater or less height than the standard prescribed by 24 "This request, taken in con- said, requires that the height of nection with the instruction that the drawbars of unloaded cars the drawbar should be of the shall be uniform." St. Louis, et-c., height prescribed by this act, ex- Ry. Co. v. Taylor, 210 U. S. 281; pressed the true rule, and should 28 Sup. Ct. Rep. 616; United have been given." States v. Atchison, T. & S. F. Ry. 25 "It is based upon the theory Co. Appendix G : St. Tjouis. I. M. that the height of the drawbars & S. Ry. Co. v. Neal, 83 Ark. of unloaded cars may vary three 591; 78 S. W. 220. inches, while the act, as we have 300 FEDERAL SAFETY APPLIANCE ACT. the law, or if, when wholly or partially loaded, its draw bars are lowered more than the maximum variation permitted, the car does not comply with the requirements of the law." -'' § 190. Insufficient operation of coupler. — The statute applies to an instance of insulScient operation of a proper coupler.^^ § 191. Improper operation of sufficient coupler. — The statute only makes it unlawful to use a car which is not equipped with the reqaired couplers, and it cannot be held that it is unlawful for a carrier's employees to fail to adjust the appliance with which the car has been, and at the time is properly equipped. "The act requires equipment, and, although there is no express language to that effect, the act must be construed to mean equipment which, if there, is capable of being operated; but no penalty is imposed, if, being there, it is not in fact efficiently operated by those in and not the proper manipulation of that equipment by the employees." ^® § 192. Preparation of coupler for coupling-. — The act of coupling and tlie preparation of the coupler for the impact are not to be distinguished. Such preparation and impact are so connected that they are indispensable parts of the larger act to which the statute applies and regulates, the performance of which Congress intended to be relieved from unnecessary risk and danger to life and limb.-® § 193. "M. C. B. defect card."— The placing of a "M. C. B. defect card" upon a car with an annotation thereon of 2« St. Ijouis, etc., Ry. Co. v. 28 Unitt'd States v. Olxicago, etc., Taylor, 210 U*. S. 281; 28 Sup. R. Co. 1.% Fed. Rep. 182. Ct. Rep. 616. 29 Chicago, etc., Ry. Co. v. Vbel- 27Taggert v. Republic Iron & ker, 12in Fed. Rep. 522: 65 C. C. Steel Co. 141 Fed. 910; Elmore v. A. 65; 70 L. R. A. 264. See note Seaboard Air Line Ry. Co. 130 21 of this chapter; United States N. C. 506; 41 S. E. 736. Contra, v. Nevada Co. N. G. R. Co. 167 United states v. Illinois Central Fed. 695. K. Co. 156 Fed. Rep. 182. CAES AND THEIR EQUIPMENT. 301 defects forbidden by the Safety Appliance Act, thereby in- forming all companies receiving it that the company so placing the card on the ear sent such car out in a defective condition and that the companies receiving and hauling the car would not have to account to the former company for the particular defect noted on the car, is such a deliberate violation of the statute as amounts to a defiance of the law.'*^ § 194. Receiving an improperly equipped foreign car. — If a foreign car be not equipped with automatic couplers, a railroad company to whom it is tendered for transportation by a connecting line is not bound to receive it for trans- portation over its lines, and may lawfully refuse to accept it until it is properly equipped.''^ But if it does receive it and uses it or hauls it upon its tracks, the receiving company will be liable.^^ § 195. Question for jury. — It is a question for the jury whether the tender and car between which the employee was injured were at the same time engaged in interstate commerce ; and they may be instructed that if they so find, the act of Congress was applicable.^^ § 196. When a federal question is presented. — Where the question arose whether or not a federal question was involved in a case brought under the Safety Appliance Act, the Su- 30 United States v. Southern ployed as notice to connecting Ry. Co. 135 Fed. Rep. 122; St. lines. Louis & S. F. R. Ck>. v. Delk, 158 3i See Sec. 3 of Act. Fed. 931; 86 C. C. A. 95; 14 32 United States v. Chicago, etc., Am. & Eng. Ann. Cas. 233; re- Ry. Co. 140 Fed. Rep. 486; see, versed, but not on this point, Delk also, United States v. Chicago, etc., V. St. Louis & S. F. R. Co. 220 Ry. Co. 143 Fed. Rep. 373. U. S. 580; 31 Sup. Ct. 617; 55 sa Philadelphia, etc., R. Co. v. L. Ed. 590; United States v. Chi- Winkler, 4 Penn. (Del.^ 387; 50 cago, etc., R. Co. 173 Fed 684 Atl. Rep. 112; affirming 4 Penn. (see Appendix G). A bad order (Del.) 80; 53 Atl. Rep. 90; Voel- card is placed on a car by the com- ker v. Chicago, etc., R. Co. 116 pany's inspector to indicate that Fed. Rep. 867: Cl-awford v. New the car must be repaired before York, etc.. R. Co. 10 Am. & Eng. moving. Such a card is never em- Neg. Cas. 166. 302 FEDERAL SAPETY APPLIANCE ACT. preme Court announced this rule: "AVhere a party to a liti- gation in a state court insists, by way of objection to or requests for instructions, upon a construction of a statute of the United States which will lead, or, on possible findings of fact from the evidence may lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by the highest court of the state, then the question thus raised m.ay be reviewed by this court. The plain reason is that in all such cases he has claimed in the state court a right or immunity under a law of the United States and it has been denied him. Jurisdiction so clearly warranted by the con- stitution and so explicitly conferred by the act of Congress needs no justification. But it may not be out of place to say that in no other manner can a uniform construction of the statute laws of the United States be secured, so that they shall have the same meaning and effect in all the states of the Union. "^* But merely because an action for personal injuries is based upon the Federal statute has been held not enough to entitle the defendant to have the cause removed to the United States Court. =**^ ''St. Louis, etc., R. Co. v. Tay- lor, 210 U. S. 281; 28 Sup. Ct. Rep. G16; 52 L. Ed. 1061. The court said the above stated principles were derived from the following cases: McCorrnick v. Market Bank, 165 U. S. 538; 17 Sup. Ct. Rep., 4.33. 41 L. Ed. 817; affirming 162 111. 100; 44 N. E. Rep. 381; California Bank v. Kennedy, 167 U. S. 362; 17 Sup. Ct. Rep. 831; 42 L. Ed. 108, re- versing 101 Cal. 495; 40 Am. St. Rep. 69; 35 Pac. Rep. 1039; San Jose Land, etc., Co. v. San Jose Ranch Co. 189 U. S. 177; 23 Sup. Ct. Rep. 487; 47 L. Ed. 765; affirming 129 Cal. 673; 62 Pac. Rep. 269; Nutt v. Knut, 200 U. S. 12; 26 Sup. Ct. Rep. 216; 50 L. Ed. 348; affirming 83 Miss. 365; 35 So. Rep. 686; 102 Am. St. Rep. 452; 84 Miss. 465; 36 So. Rep. 689; reversing 84 Miss. 465; 36 So. Rep. 689; Rector v. City Deposit Bank, 200 U. S. 405 ; 26 Sup. Ct. Rep. 289; 50 L. Ed. 527; Eau Claire Xational Bank v. 527; Illinois Cent. R. Co. v. Mc- Kendree, 203 IT. S. 514; 27 Sup. Ct. Rep. 153: 51 L. Ed. 298; Eau Claire National Bank v. Jackman, 204 U. S. 522: 27 Sup. Ct. Rep. 391; 51 L. Ed. .596; affirming 125 Wis. 465; 104 N, W Rep. 98; Hammond v. Whit- tredge, 204 U. S. 538; 27 Sup. Ct. Rep. 396: 51 L. Ed. 606; affirming 189 Mass. 45; 75 N E. Rep. 222. s^aJIvrtle v. Nevada. 0. & 0. Ry. Co. 137 Fed. 193; St. Louis, T. M. & S. R. Co. V. Neal. 83 Ark. 591; 98 S. W. 958; Inter- CAKS AND THEIR EQUIPMENT. " 303 § 197. State statute on same subject applicable to intra- state commerce. — Possibly a state statute requiring auto- matic couplers upon cars used within a state might be en- forced in a suit to recover damages caused because of a failure to equip cars used in interstate commerce." § 198. Handholds — Through train. — The statute requires cars to be furnished with handholds. Cars in a train operated by a railway company engaged in the transportation of freight across a state and beyond its boundaries is a "tlirough train," and every ear in it must be furnished with "handholds." A failure to furnish them is negligence per se.^^ A brakeraan using a defective handhold does not assume the risk of de- fectiveness.^'^ These handholds or grabirons must be at both ends of the car."^ The grabirons must be secure ; but if each end of the car has some other appliance, such as a ladder or brake lever, which affords the same security as if a grab- iron were at that point, the statute is not violated.^'' Pas- senger coaches must have proper grabirons.**' "The purpose national & G. N. Ry. Co. v. Elder, Boston & Maine R. Co. (Appen- 99 iS. W. 856; Southern Ry. Co. dix G) ; United States v. Terminal, V. Carson, 194 U. S. 137; 24 Sup. etc. (Appendix G) ; Chicago, etc., Ct. 609; 48 L. Ed. 907: affirming R. Co. v. United States, 165 Fed. 68 S. C. 55; 46 S. E. 525. Rep. 423; United States v. .South- 35 See Voelker v. Chicago, etc., em Ry. Co. 167 Fed. 699 (see R. Co. 116 Fed. Rep. 867; Kansas Appendix G) ; United States v. City, etc., R. Co. v. Flippo, 138 Atlantic Coast Line R. Co. (see Ala. 487; 35 So. Rep. 457; contra, Appendix G) ; Wabash Ry. Co. v. Rio Grande So. R. Co. v. Camp- United States. 168 Fed." Rep. 1 bell, 44 Colo. 1; 96 Pac. Rep. 986, (decided February 3, 1909) ; see, State V. Adams Exp. Co. 170 Ind. also. Section 167, note 34, and 138; 85 N. E. 337, 936; (State v. Sections 212, 213. Missouri Pac. Ry. Co. (Mo.) 11 S7 Coley v. North Carolina R. Co. S. W. Rep. 500. "But see, Blanch- 128 N. a 534: 39 S. E. 43. ard V. Detroit, etc., R. Co. 139 38 United States v. Illinois Cen- Mich. 694; 103 N. W. Rep. 170; tral R. Co. 166 Fed. 997; United 12 Det. Leg. N. 30, and Taylor v. States v. Chicago & N. W. Ry. Boston, etc., R. Co. 188 Mass. 390; Co. 157 Fed. 616. 74 N. E. Rep. 591. See Sec. 150/T. 39 United States v. Boston & M. 36]\Talott V. Hood, 99 111. App. R. Co. 168 Fed. 148. 360; affirmed, 201 111. 202; 66 N. 4n Norfolk & W. Ry. Co. v. E. Rep. 247; United States v. United States, 177 Fed. 623. 304 FEDERAL SAFETY APPLIANCE ACT. of requiring grabirons or handholds to be placed at the end of the ears used in interstate commerce seems to have been to afford greater security for employees when they are in the act of coupling or uncoupling cars." ^^ § 199. Handholds on roof of car — Sill steps — Hand- "brakes — Ladders — Running boards. — The handholds or grabirons discussed in the next preceding section are those at the end of the car so as to enable the brakemen to safely couple the cars.^- The statute of 1910, supplemental to the Safety Appliance Acts of 1893 and 1903, provides that "it shall be unlawful for any common carrier subject to" their provisions "to haul, or permit to be hauled or used, on its line any car subject to" its provisions not "equipped with secure sill steps and efficient hand brakes; all cars re- quiring secure ladders and secure running boards" must be "equipped with such ladders and running boards, and all cars having ladders" must be "equipped with secure handholds or grabirons on their roofs at the top of such ladders." "In the loading and hauling of long commodi- ties, requiring more than one car, the handbrakes may be omitted on all save one of the cars while they are thus com- bined for such purpose." The Interstate Commerce Com- mission is recjuired to "designate the number, dimensions, location, and manner of application of the appliances provided for" in the above quotation, and also in section four of the Act of 1893, and to "give notice of such desig- nation to all common carriers subject to the provisions" of the statute by such means as they may deem proper. There- after the number, location, dimensions, and manner of application as designated by the Commission "shall remain as the standards of equipment to be used on the cars subject 41 Dawson v. Chicago, R. T. & Wabash Terminal Rv. Co. Appen- P. Ry. Co. 114 Fed. 870; United dix G. States V. Illinois Central R. Co. •'^ Dawson v. Cliicago, R. I. & P. 106 Fed. 997; United States v. Ry. Co. 114 Fed. 870; Section 1 of Act of 1893. CARS AND THEIR EQUIPMENT. 305 to the provisions of" the statute, "unless changed by an order of said Interstate Commission, to be made after full hearing and good cause shown." Failure to comply with the requirements of this order is an offense. After hearing the Commission is empowered to "modify or change, and to prescribe the standard height of drawbars and to fix the time within which such modification or change shall become effective and obligatory. ' ' '^^ 43 For air brakes, see Section for him to connect or disconnect 215. A man engaged in connect- that hose in order to connect or ing the air hose between the cars disconnect the cars. ITnited .States is engaged in coupling or uncoup- v. Boston & M. R. Co. 168 Fed. ling the cars within the meaning 148. of the statute, if it is necessary CHAPTER XII. REPAIRS. SECTION 200. Degree of diligence to make repairs. 201. Use of dir.!,'ence to discover defects — Want of Icnowl- edge of defect. 202. Duty to maintain car in re- pair is an absolute one. 203. Presumption — Diligence t o discover defects and make repairs in transit. 204. Distinction between an ac- tion to recover a penalty and to recover damages. 205. Oars in transit — Construc- tion of statute. 206. Hauling car to nearest re- pairing point. 207. Destination of car nearer than repair shops. 208. Repairing car in transit. SECTION 200. Repairs during journey. 210. Establishing repair shops and material. 211. Knowledge of defect not an element of the defense. 212. Failure to provide or repair defective handholds. 213. Use of "shims"— Common- law duty of master not applicable — Fellow serv- ant's neglect — Construc- tion of statute — Hand grips. 214. Repairing couplers — Other act of negligence aiding negligence with reference to couplers. 215. Failure to equip train with air brakes. § 200. Degree of diligence to make repairs. — What de- gree of diligence is necessary in making repairs has been variously decided. Thus, in one case it was said : ' ' The utmost diligence does not seem to have been used to discover and repair the defect in this car." ^ In another case the court said: "If diligence is to be recognized as a defense, certainly it must be the highest form of diligence. Without regard to what the rule of liability may be, the exercise of the greatest care in the matter of equipment and maintenance will keep coupling appliances in such condition as to exclude, except in very remote instances, the necessity of prosecutions for the enforcement of the act." The facts in this case, recited in the oi)inion, .show why tlic court did not think a proper de- United 306 States v. Louisville, etc., R. Co. 150 Fed. Rep. 193. REPAIRS. 307 gree of diligence had been observed to discover the defect and repair it. The defect was occasioned by the loss of a clevis pin. "The car came to the Indiana Harbor Road," said Judge Landis, "from another carrier at a junction point. Here the defendant maintained a car inspector, who testified that, before cars were moved from there by liis company, he 'customarily,' or 'usually,' or 'generally,' made an examina- tion of the coupling apparatus, which examination consisted of looking at the coupler and lifting the lever. If such inspec- tion disclosed no defect, the inspector passed the car, other- wise he made a record of the fact in a book kept for that purpose, and the repairs were made before the car was moved. The witness did not recall the particular car in question, but his book contained no record of the car, which indicated that his inspection showed the appliances to be in good condition. Even assuming the government's view of the law- to be wrong, the finding in this case must be against the railway company on the questions of fact. The distance traveled by the car over defendant's track was but a few miles. If, at the initial point, the pin had been in place and properly fastened, it is not probable that it would have been displaced by the ordinary handling of the car to destination. The fact that the pin was missing at the end of the journey is strongly indicative that the defect existed at the point of origin, that is to say, that the pin either was not then present, or was so badly worn or loosened, that proper inspection would have disclosed the fact." The court, therefore, ordered a de- cree entered against the railroad defendant thus found delin- quent.^ 2"Tliat it is no defense to a 170 Fed. 542; United States v. prosecution of this character that Erie R. Co. 166 Fed. 352; Chicago the carrier exercised diligence to & N. W. Ry. Co. v. United States, provide and maintain its equip- 168 Fed. 236. ment with safety appliances, as It is not enough for a defense required by the act." that the raihvay company equipped 3 United States v. Indiana Har- a car properly, if it becomes out bor Co. 157 Fed. Rep. 565; see, of repair. It must repair the de- also, United States v. Atlantic, feet. United States v. Erie R. Co. etc., R. Co. (Appendix G). 167 Fed. 352; United States v The burden is upon the defend- Great Western Ry. Co. 174 Fed. ant to show an excuse for not 399; Chicago, B. & Q. Ry- Co. v. making the repairs in time. United United States, 170 Fed. 558. States V. Illinois Central R. Co. 308 FEDERAL SAFETY APPLIANCE ACT. § 201. Use of diligence to discover defects — Want of knowledge of defect. — If a railroad company has properly- equipped its ears, still it will be liable if they become de- fective, thereby causing an injury ; and it is no defense that the defendant company exercised reasonable care and dili- gence to discover and repair the defect before placing the car in service. "The statute says," said Justice Humphrey, "that common carriers shall not haul or use cars in a certain described condition. The defendant asks the court to hold, in effect, that they cannot haul the car in that condition, provided, that they have failed to use diligence to discover its defective condition, but that if they have used due dili- gence they may haul the car in its defective condition. In all such cases it would be impossible for the officers of the government to determine in advance whether a statute has been violated or not ; but before a prosecution could be prop- erly instituted they should go to the defendant company, ascertain what care it had used in regard to a certain car, de- termine as a matter of fact and law whether the acts of the defendant constituted due diligence, and from that determine whether a prosecution might be safely instituted. It is evi- dent that such a defense w^ould take the very life out of the act in question and render its enforcement impossible, except in a few isolated cases. The courts cannot, by judicial legis- lation, read into the act any language which wnll excuse of- fenders any more than they can read into it language which would increase their liability. Courts must enforce law as they find it. * * * I have been unable to find that this character of defense has been sustained in any case which reached the courts of last resort. Counsel for defendant has not cited any authority in support of this doctrine of due diligence as a defense to a penal action. It is in the same category with the question of intent under the revenue laws and of good faith under statutes against handling adulterated goods, drugs, etc. It is certainly well established that the good intentions, or the lack of evil intent, on the part of a REPAIRS. 309 liquor dealer is no defense to a prosecution for the statutory penalty. If this is no defense in a quasi criminal action, it certainly would be none in a civil action involving the same facts." "The propositions of law submitted by the de- fendant are, therefore, denied." * This case was approved in a subsequent case in which it was said: "The railroad com- panies are charged, as I have shown, with the duty of haul- ing only such cars as are provided with automatic couplers in suitable repair, so as to be operative without the necessity of employees going between the cars; and it would go far to subvert the law and the purpose thereof if they were per- mitted to say that they had no knowledge of the defect, and that, therefore, they were not liable under the act. The com- panies must ascertain for themselves and at their peril Avhether or not they have taken up or are hauling cars with defective couplers. Their intention to do right does not re- lieve them.^ I hold, therefore, that want of knowledge of the defects on the part of the defendant company does not con- stitute a defense."" Under the recent decisions knowledge is not an element of the defense.*'* 4 United States v. Southern Ry. Southern Ey. Co. 167 Fed. 699: Co. 135 Fed. Rep. 122. Appendix G; Atlantic Coast Lino ^- Citing United States v. Great R. Co. v. United States, 168 Fed. Northern Rv. Co. 150 Fed. 229. Rep. 175: United States v. Atlan- 6 United States v. Southern Pae. tic Coast Line Co. (Appendix G) : Co. 154 Fed. Rep. 897; United Chicago, etc., R. Co. v. United States V. Atlantic, etc., R. Co. 153 States, 165 Fed. Rep. 423; Chi- Fed. Rep. 918. This is now the cago, etc., R. Co. v. King, 169 rule of the majority of the cases, Fed. Rep. 372. But see United especially those of ^a recent date. States v. Illinois Cent. R. Oo. 170 United States v. Atchison, etc., R. Fed. 542 (Appendix G). Co. 167 Fed. 636 (Appendix G) ; 6* United States v. Chicago, etc.. United States v. Wabash R. Co. R. Co. 156 Fed. Rep. 180; United 168 Fed. 1; (Appendix G) ; United States v. Philadelphia, etc., R. Co. States V. Atchison, etc., Ry. Co. 160 Fed. 696 (Appendix G) ; 163 Fed. Rep. 517; United States United States v. Pennsylvania R. V. Chicago, etc., R. Co. 163 Fed. Co. (Appendix G) ; United States Rep. 775; United States v. Balti- v. Baltimore, etc., R. Co. (Appen- more, etc., R. Co. (Appendix G) ; dix G) ; United States v. Lehigh United States v. Erie R. Co. 166 Valley R. Co. 160 Fed. 696 (Ap- Fed. Rep. 352; United States v. pendix G) ; United States v. Chi- 310 FEDER.VL SAFETY APPLL\NCE ACT. § 202. Duty to maintain car in repair is an absolute one. — Whether or not the duty of a railroad company to equip its cars ^\'ith automatic couplers as the statute requires, and to maintain them in that condition, is an absolute one or one merely requiring the exercise of reasonable diligence, has recently been settled hy the Supreme Court of the United States. Under the interpretation of this court given the statute, reasonable diligence to equip cars with auto- matic couplings and to maintain them in repair is not a defense, either in an action to recover the penalty pre- scribed by the statute for a failure in this respect or to recover damages sustained by an employee by reason of their defective condition. The court discussed at great length Taylor's case.*'^ In that case the court used this language: "In the case before us the liability of the de- fendant does not grow out of the common law duty of master to servant. The Congress, not satisfied with the common law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that 'no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.' Theife is no escape from the meaning of these words. Explanations cannot clarify them, and ought not to be employed to con- fuse them or lessen their significance. The obvious pur- pose of the legislature was to supplant the qualified duty cago, etc., E. Co. 162 Fed. Rep. ca St. Louis, T. M. & S. R. Co. 775; United States v. Erie R. Co. v. Taylor, 210 U. S. 281; 28 Sup. 166 Fed. Rep. 352. Ct. 616; 52 L. Ed. 1061. This The inspectors of the govern- ^ase fii-st appeared as Noal v. St. ment are not required to notify Louis, I. M. & S. R. Co. 71 Ark. the employees of the railroad eom- ^^45. ij-g g_ y^r 2,20, where it was pany of defects on cars ^^"'J^^J reversed. It was again appealed States V Atchison etc R. Co. 1 (.7 ^^ ^ judgment aflirmed. St. Fed 606 (Appendix C.) ; Umtexl ^ ^^ ^ g ^ ^^ ^ ^^^^^ ^dfx n^^"^'"'^™ ^''- ^ ^ 83 Ark. 501: 08 S. W. 058. Ani ^« This' section is retained, al- 't was then appealed to the United though it is, in its main point, in states Supreme Court and again direct conflict with the rule laid allirmed. down in the next preceding section. REPAIRS. 311 of the common law wdth an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibition of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts." In the first appeal, the Su- preme Court of Arkansas had said: "The statute upon which this case is based does not say that the company shall use ordinary care to provide its cars with drawbars of a certain height, but it imposes as a positive duty upon rail- way companies that they shall do so. * * * The act of Congress requiring railroad companies to equip their cars with drawbars of standard and uniform heights, specifically proves that an employee injured by the failure of a com- pany to comply with the act shall not be deemed to have assumed the risk by reason of his knowledge that the com- pany had not complied with the statute, and there is no question of assumed risk presented."'^'' The Federal Su- preme Court, in this recent case regarded the Taylor case as having settled that it was the absolute duty of an inter- state railway company to maintain its cars, after their equipment, in a proper condition, and that it was no defense that it had used reasonable diligence to keep them in re- pair.^*' The court quoted with approval the following lan- guage used by Mr. Justice Van Devanter (now on the Federal Supreme Court Bench), used in a Circuit Court of Appeals : " It is now authoritatively settled that the duty of the railway company in situations where the Congressional law is applicable is not that of exercising reasonable care in maintaining safety appliances in operative condition, but is absolute. In that case the common law rules in respect BbNeal V. St. Louis, I. M. & S. Sup. Ct. 612; 55 L. Ed. 521; E. Co. 71 Ark. 445; 78 S. W. 220. Southern Ry. Co. v. United States, 6c Chicago, B. & Q. Ry. Go. v. 222 U. S. 20; 32 Sup. Ct. 2; 5(3 United States, 220 U. S.*^ 55<9; 31 L. Ed. — . 312 FEDERAL SAFETY APPLIANCE ACT. of the exercise of reasonable care by the master, and of the non-liability by the master for the negligence of a fellow- servant, were involved by the railway company, and were held by the court to be superseded by the statute. * * * "Wliile the defective appliance in that case ^^ was a draw- bar, and not a coupler, and the action was one to recover damages for the death of an employee, and not a penalty, we perceive nothing in these differences which distinguish that case from this. As respects the nature of the duty placed upon the railway company, section five, relating to drawbars, is the same as section two, relating to couplers ; and section six, relating to the penalty, is expressed in terms which embrace every violation of any provision of the preceding sections. Indeed, a survey of the entire statute leaves no room to doubt that all violations thereof are put in the same category, and that whatever property would be deemed a violation in an action to recover for personal injuries is to be deemed equally a violation in an action to recover a penalty. " '''' On the same day the Su- preme Court settled the question holding it was the abso- lute duty of a railway company to equip its cars as the statute required and to so maintain them without regard to reasonable care or the degree of diligence, it reaffirmed the inile it had approved.®^ 6d The Taylor case above re- ferred to. 6e United States v. Atchison, T. & S. F. R. Co. 163 Fed. 517: 90 C. C. A. 327. efDelk v. St. Louis & S. F. E. Co. 220 U. S. 580; 31 Sup. Ct. 617; 55 L. Ed. 590; reversing 170 Fed. 550; 95 C. O. A. 642. The following cases in lower courts had accepted the rule laid down in the Taylor ease and as suhsequently affirmed by the Su- preme Court: United States v. Philadelphia & R. Rv. Co. 162 Fed. 403; United States v. Lehigh Valley R. Co. 162 Fed. 410; United Statek V. Denver & R. G. R. Co. 163 Fed. 519; 90 C. C. A. 329: Chicago, M. & St. P. R. Co. 165 Fed. 423; 91 C. C. A. 371; 20 L. R. A. (N. S.) 473; Donegan V. Baltimore & N. Y. R. Co. 165 Fed. 689; 91 C. C. A. 555; United States V. Erie R. Co. 166 Fed. 352; United States v. Wheeling & L. E. R. Co. 167 Fed. 198, 201; Atlantic Coast Line R. Co. v. United States, 168 Fed. 175, 184; 94 C. C. A. 35; Chicago Junction R. Co. v. King, 169 Fed. 372, 377; 94 C. C. A. 052; United States v. Southern REPAIRS. 313 § 203, Presumption — Diligence to discover defects and make repairs in transit.* — Not at one are courts with. respect to the degree of diligence that must be exercised to discover defects in cars and make repairs. In some of the cases little or no excuse is accepted as a defense, even in a criminal case ; while in others more leniency is shown, at least in criminal eases. Such a case is one that arose in the United States Court for the District of Nebraska. In that case the testimony showed that the defective car had at one time been equipped in the manner required by law, and the court declared that it could not presume that any part Pac. Co. 1G9 Fed. 407, 409; 94 C. C. A. 629 ; Watson v. St. Louis, I. M. & S. R. C5o. 169 Fed. 942; Wabash R,. Co. v. United States, 172 Fed. 864; 97 C. C. A. 284. Atchison, T. & iS. F. R. Co. v. United States, 172 Fed. 1021; 96 C. C. A. 664; United States v. Atchison, T. & S. F. R. Co. 163 Fed. 517; 90 C. C. A. 327: Norfolk & W. R. Co. V. United States, 177 Fed. '623; 101 C. C. A. 249; United States v. Illinois C. R. Co. 177 Fed. 801; 101 C. C. A. 15; Johnson v. Great Northern R. Co. 178 Fed; 646; 102 C. C. A. 89; Siegel V. New York, C. & H. R. R. Co. 178 Fed. 873. In the following cases the same rule was adopted : Chicago, B. & Q. Ry. Co. V. United States, 170 Fed. 556 ; United States v. Illinois Central R. Co. 170 Fed. 542; United States v. Philadelphia & R. Ry. Co. 160 Fed. 096; United States V. Southern Pacific Co. 167 Fed. 699; United States v. Louisville & N. R. 'Co. 156 Fed. 193; United States V. Illinois Central R. Co. 15G Fed. 182; Brinkmeir v. Mis- souri Pacific Ry. Co. 81 Kan. 101; 105 Pac. 221; overruling first para- graph of syllabus in ]\lissouri Pacific Ry. Co. v. Brinkmeir, 77 Kan. 14; 93 Pac. 621. Reasonable diligence to discover defect is all that is necessary to be used has been held in these cases: Norfolk & W. Ry. Co. v. Ha^elrigg, 170 Fed. 551; Carson v. Southern Ry. Co. 68 S. C. 55; 46 S. E. 525; see St. Louis, I. M. & S. Rv. Co. V. York, 92 Ark. 554; 123 S.'W. 376. The same degree of diligence is required under the iMichigan stat- ute. Wight V. Michigan Central R. €o. 161 Mich. 216; 126 N. W. 414; 17 Dot. Leg. N. 289, and under the Illinois statute, Erlinger V. St. Louis & 0. Ry. Co. 152 111. App. 640; 245 111. 304; 92 N. E. 153. In the construction of a state statute regulating intrastate car? in terms identical with the Federal statute concerning tlie duty to e(piip and keep couplers in repair, the state court will follow the con- struction placed upon the Federal statute. Luken v. Lake iShore & M. S. Rv. Co. 248 111. 377; 94 N. E. 175. * 314 FEDERAL, SAFETY APPLIANCE ACT. of the required equipment was imperfect when the alleged defective cars had. some time previously to the discovery of the defects, been started on their interstate journeys, for there was no evidence whatever as to the effect that the safety ap- pliances were in any wise defective when they besfan their journey. "The presumption of innocence," said the court, will leave no room for the inference that the ears were not properly equipped when that journey was begun, especially as no intelligent person can shut his eyes to the fact that the rapid motion, rough jostling and jolting of the trains, and their immense weight may at some time result in injury to such equipment. There cannot be much nicety in the move- ments of freight trains. The only offenses," continued the court, ''imputed to the defendant in these cases is the use of the various cars at the times specified in the pleadings and covered by the evidence. Except these, no other offenses are charged or attempted to be proved. The testimony on behalf of the government shows that nearly every one of the cars had started from the initial point of their respective jour- neys at least one day. and usually longer, before the inspectors of the United States discovered the defects at some inter- mediate station. The testimony was very brief, and was di- rected altogether to what the inspectors then saw. No information was given which might enable the court to deter- mine how long the defect existed. Obviously, under these circumstances, we could not conclude that any defects existed when the car started several days before. We must, on the contrary, presume that the defects were in some way caused during the long previous journey from the initial point to the point of discovery, and therefore, presuming that no vio- lation of the act occurred until after the cars had left the original .starting points, and having ascertained from the clear and explicit evidence offered by the United States that de- fects were found during the subsequent journey, we come to the point where our greatest difficulty begins. We should not lightly suppose that Congress intended, in case a prop- erly equipped car started on its interstate journey with all REPAIRS. 315 the required safety appliances in perfect condition, but some part of which afterwards, in its rough and rapid journey, in some unknown way and at some time when the fact was prac- tically, if not actually, undiscoverable, was broken or other- wise made defective, that the running of that car for the least distance under those circumstances should be held to be a criminal offense. Yet such is the contention for the United States, and it is true that the act, literally construed, would lead to that result and would embrace just such a case. To make crimes out of such inevitable, unavoidable, and unin- tentional acts, of the happening of which the carrier would usually be unconscious, would obviously be unjust and op- pressive, and in a certain sense absurd for that reason. It would be shocking to any well-regulated moral sense to up- hold the contention if only an individual citizen were in- volved, and as we know of no rule that differentiates one sort of person from another in the application of the rules of criminal law, we cannot willingly hold that such was the in- tention of Congress, even though the language used might literally indicate it. We are not, however, permitted to de- part from the words of the act of Congress, or to read exceptions into it, unless upon established principles of interpretation which would authorize it. Some departure from a literal construction may be admissible in this instance ; but, if so, we must not only find the principles upon which that course may be justified, but also the points where we may begin and where we must end; and this, we think, has been done in the authorities we have cited. It was insisted on behalf of the government that the statute should be con- strued with the utmost strictness, and so literally as to make it a criminal offense under the statute if the car was used or operated for one moment, even at night, after the breakage of any part of the required equipment, even though such breakage occurred while the train was in rapid motion between stations, when it was impossible for anybody connected with its operation to ascertain the facts. In short the contention was that the act should be 316 FEDERAL SAFETY APPLIANCE ACT. construed in the strictest and most literal manner, without regard to any other consideration whatever. If this contention be sound, nothing could be sim- pler, and the government was accordingly content to prove, as it did by two of its inspectors, that they passed alongside of the defendant's trains while at intermediate stations upon the several occasions involved and discovered the defects alleged in the respective paragraphs of the petition, and saw the cars proceed on their journey in that condition. It was also shown that this was done without in any wise informing any of the employes of the defendant of the defects. This was the course pursued in one instance at Fulton, Kentucky, where at least seven separate couplings had been ascertained to be out of repair in one train, although the defects may have endangered the lives of the crew in charge 'of that train during the trip to its destination, and although several of these defects could have been very easily repaired at that point if their existence had been disclosed. If the inspectors had pointed out the defects, and if those defects had not been repaired before the cars were moved (if under the circum- stances that were reasonably possible), the offense would cer- tainly liave been complete. And if the repairs had then been made the object of the law would have been accomplished, and the protection of the train hands would have been cared for so far as the safety appliances were concerned. The inspec- tors, however, seem to have thought it to be their duty to permit defectively equipped cars to move without giving any information that would have enabled the defendant to remove the dangers to the crew by supplying or repairing the defects. On the other hand, it was insisted that the statute should be so construed as not to visit criminal consequences upon a defendant in cases where it had started its cars with the proper equipment, but which, during the journey, had become deficient from unavoidable occurrences and under circum- stances, where the discovery of needed repairs was in most instances impossible. It was urged that the construction con- tended for by the government would lead to gross injustice REPAIRS. 317 ; and oppression and to the absurd consequences of punishing ^ one for a wholly involuntary act, the doing of which could not be discovered until a greater or less time had elapsed after the offense had been completed. The defendant ac- cordingly, while complaining of the impossibility of being able to show the exact facts at all times in reference to the innumerable couplings and handholds on the vast number of cars hauled, offered evidence tending to show that it had in- spected all its cars; that it had not discovered the defects alleged, unless in one or two instances, in which the cars had to be moved short distances in order to reach a point where repairing was possible. And thus we are brought to the ques- tion whether, if safety appliances, which are in good condi- tion when the journey of a car on which interstate traffic is being carried begins, afterwards, without the knowledge of the carrier, get broken or otherwise out of repair, it is suffi- cient proof of the violation of the law to show that fact sim- ply, without showing also that the defendant had learned of the defect or had had reasonable opportunity to do so. Manifestly the act does not contain any words implying that the use of the car without the required safety appliance equip- ment shall be with intent to violate the statute, or be knowingly and willfully done ; nor, indeed, does the language make any exceptions where an unavoidable accident impairs or destroys the operative powers of any of these appliances while the train in which the car is placed is moving on its journey. Speaking generally, the rule is that in such cases we cannot by construction take from nor add to the language used by Congress, but what we are to ascertain in these cases is, not what general rules require, but whether there are any exceptions to those rules, and, if any, what they are. The authorities we have cited seem clearly to show that, if a strict and literal construction would lead to manifest injustice and oppression then the language used should be so construed as to avoid those results. The defendant is a common carrier, engaged in the performance of important duties to the public, involving great and various obligations, to which it is strictly 318 FEDERAL SAFETY APPIJANCE ACT. held. For the most part the several things alleged against it in these cases, were the result of what had occurred while its trains were in motion between stations on its railroad. Those occurrences were practically inevitable in the ordinary opera- tion of its trains. It was impossible to avoid them, or to know of them until long afterwards; and, however it may strike others, in the opinion of this court it would obviously be unjust and oppressive to so construe the Safety Appliance Act or to make such occurrences criminal offenses under its provisions, unless the defendant had reasonable opportunity to learn of them before it afterwards used the car in hauling interstate traffic. For this reason the court readily yields to those rules of constrviction fixed by the Supreme Court in the cases eited,'^ and by which it can properly construe the acts upon canons of interpretation which justify and demand the limitation of its general language within the bounds we shall indicate. In support of these respective contentions several opinions were cited upon the one side or the other.^ * * * While we have been instructed by those cases, we have preferred to look at the question now in litigation from 'Huntington v. Attrill, 146 U. G90; Chaflfee v. United States, 18 S. r.57; 13 Sup. Ct. Rep. 224; Wall. 545; 21 L. Ed. 908; revers- 36 L. Ed. 1123: reversinj? 70 ijtg Fed. Cas. No. 14,774; Clyatt Md. 191; 2 L. R. A. 779; 14 v. United States, 197 U. S. 207; Am. St. Rep. 344; 16 Atl. Rep. 25 Sup. Ct. Rep. 429; 49 L. Ed. 651; Johnson v. Southern Pac. Co. 726; Kirby v. United States, 174 196 U. S. 1; 25 Sup. Ct. Rep. U. S. 55;" 19 Sup. Ct. Rep. 574; 162; 49 L. Ed. 363; reversing 54 43 L. Ed. 809; Agnew v. United C. C. A. 508; 117 Fed. Rep. 462; States. 165 U. S. 50; 17 Sup. Ct. United States v. Lacher 134 U. Rep. 235; 41 L. Ed. 624. S. 629; 10 Sup. Ct. Rep. 625; « These were United States v. 33 L. Ed. 1080; Carlisle v. United Southern Ry. Co. 135 Fed. Rep. States, 16 Wall. 153; 21 L. Ed. 122; United States v. Pittsburg, 426; reversing 6 Ct. CI. 398; etc., Ry. Co. 143 Fed. Rep. 360; United States v. Bell Telephone United States v. Northern, etc., Co. 159 U. S. 548; 16 Sup. Ct. Co. 144 Fed. Rep. 861; United Rep. 69 ; 40 L. Ed. 225 ; Mottley v. States v. Indiana, etc., R. Co. Louisville, etc., R. Co. 150 Fed. 156 Fed. Rep. 565; United States Rep. 406; The Burdett, 9 Pet. v. Chicago, etc., R. Co. 156 Fed. REPAIRS. 319 a point of view somewhat different, and, without going into much elaboration, will state the conclusions reached. It prob- ably in this connection should not be forgotten that the Safety Appliance Act was intended to promote the safety of the very men who are in charge of the trains — men whose duty and interest require them to discover any breakage or defect that might occur ; and, if they could not do so, it seems to the court that the literal construction contended for upon the part of the United States would not be a sensible con- struction, but would work out, probably in most instances, the palpably unjust and oppressive result of inflicting a pun- ishment for an unavoidable act of which the offender was at the time of its commission necessarily unconscious and with- out any sort of intention of doing a wrong. As Congress must be presumed not to have intended such a result, we should hold that it did not intend to punish the unavoidable and unconscious doing even of an otherwise unlawful act. This view is emphasized bj^ the obvious facts that trains, es- pecially on single-track railroads, could not, without great danger to the traveling public, stop between stations to re- adjust or put on, for example, a new handhold, or a new pin or clevis, on some car in a freight train, even if the defect were discovered ; that in respect to automatic couplers no very great danger to train hands could arise until a point is reached where coupling or uncoupling would be necessary; and that the carrier's duty to the general public should not altogether be forgotten. We cannot resist the conviction that the most urgent insistence upon a literal construction of the statute would balk in a case where a train running at speed between stations in some way broke some part of the safety 180; United States v. Great, etc., etc., Ry. Co. 110 Fed. Eep. 867. Ry. Co, 150 Fed. Eep. 229; "And the same ease in the Circuit United States v. Southern Pac. Court of Appeals. One of these Co. 154 Fed. Rep. 897; United cases, it will be noted was an ac- States V. Atchison, etc., Ry. Co. tion for damages by an individual, 150 Fed. Rep. 442; United States and the other was for the enforce- V. St. Louis, etc., R. Co. 154 Fed. ment of the criminal provisions of Elep. 516; Voelker v. Chicago, the statute." 320 FEDERAL SAFETY APPLIANCE ACT. appliance equipment. The literal interpretation contended for by the counsel for the United States demands, and coun- sel insists upon, the conclusion that, if the train proceeds at all for any distance (even the shortest) after the break occurs, the offense is complete, and that it is not for the courts to say that an offense has not been committed, but that it is for the executive officers to decide whether the government will overlook the offense or prosecute it. The courts, however, if appealed to, could hardly yield to a view which would exclude them from the function and the duty of passing upon the proper meaning of the act, and determining for themselves whether a person accused was guilty of a public offense ; and in the exercise of that duty they can scarcely fail to say that common sense demands some relaxation from a literal con- struction in the case supposed. If we relax from it at all, we logically surrender it altogether, and thenceforward our labors must be directed to finding the exact point where we may begin and where we may end in order to reach a sen- sible and just conclusion as to what should be done in such cases. That some relaxation from the literal construction contended for is unavoidable, is clear, and we think we may best interpret the intention of Congress by holding that the carrier should be made liable when it is shown that a safety appliance equipment has become deficient and inoperative after the interstate journey of the car had begun, if it does not supply the deficiency at the first opportunity after it is actually discovered, or after its discovery could have been made by the use of the utmost care that a highly prudent man would use under the circumstances of the case. The de- termination of the question of that degree of care would, of course, in some instances, depend upon complex conditions; but the necessity for its determination would seem to be unavoidable, unless we are to have a too literal or a too loose construction of the act in applying it to practical affairs in which the great questions of human safety and necessary business are alike involved. This view seems to the court REPAIRS. 321 to approximate as nearly as possible the presumed purpose of Congress to punish intentional or avoidable acts, and not those which were unknown and absolutely unavoidable when they occurred. To impute to Congress an intent to do the latter, would seem to be inadmissible, though we should prob- ably punish in every instance where any deficiency in safety appliances existed when the car was started on the interstate journey. At that point, know^ledge of the defect could in most, if not in all, cases be discovered. But, if the operative functions of such appliances become defective during that journey, then punishment as for a criminal offense should only be visited upon the carrier in cases where he, by the use of the utmost degree of diligence which would be used by a highly prudent person under the circumstances, could have discovered and repaired the defect. A less stringent rule should not, we think, be tolerated. Assuming, as we must from the evidence and legal presumptions, that each of the offenses alleged in these eases was committed, if at all, while the car was upon an interstate journey, and not before such journey began, we think the government, in order to be entitled to recover the prescribed penalty for the offense, must by the evidence show to the exclusion of reasonable doubt the following facts: First, that the car was used in hauling interstate traffic; second, that when so used the car w^as either not equipped or provided with the required safety appliances at all, or else that some part of those appliances had become inoperative ; and, third, if, as must be presumed was the case with most of the cars now involved, those appliances were all in good order and condi- tion when the car was originally started on its interstate journey, and afterwards became defective during the transit, then, in order to convict, the evidence must show to the ex- clusion of reasonable doubt that the alleged defects had respectively been either in fact discovered by the carrier or else that they could have been discovered and corrected by it by the exercise of the utmost degree of care and diligence 322 FEDERAL SAFETY APPLIANCE ACT. \\'hich could be expected at the hands of a highly prudent man under similar circumstances. ' ' ^ § 204. Distinction between an action to recover a penalty and to recover damages. — In a recent case in the Circuit Court of Appeals for the Sixth Circuit a distinction has been dra^vn between an action to recover damages for an injured employee occasioned by lack of proper equipment and one to recover a penalty for the government, with respect to a car becoming defective during its transit. In a case of a prosecution to recover a penalty the rule is laid down that if the railroad company has used the utmost diligence in having a defect corrected it is excused and not liable to the penalty.'-'* But it cannot be seriously contended that there is one rule in an action by the government to recover a penalty and another to recover damages to the person.^'* § 205. Cars in transit — Construction of statute. — A simi- lar view was taken in another case. Said the court: "The first rule of construction which occurs to us is that we are to have regard to the scope and purpose of the statute, not so much the general purpose, as the immediate purpose of this particular enactment. For, if we look too intently upon some ultimate good we would wish to accomplish, we are very liable to distort the law or make out of it some other enactment than that which the legislature has in fact passed. We think the immediate purpose of Congress in this enact- ment, in the respect we are now considering it, is that dis- Unitcfl States v. Chicago, etc., iitp, was suflicient. Just how far E. Co. 150 Fed. Rep. 182. it is not the law in view of the This court proceeded upon an recent decisions of the United entirely erroneous construction uf States Supreme Court, Section 202, the statute. It held that the case it is quite difficult to determine, was a criminal one, when it was a n"^' United States v. Illinois Cen- civil one. It held that the case tral R. Co. 170 Fed. .542 (Appen- must he proven hy the prosecution dix G). beyond a reasonable doubt, when a oa Chicago, B. & Q. Ry. Co. 220 mere preponderance, but clearly U. S. 559; 31 Sup. Ct. G12; 55 shov.'iiij' the violation of the stat- L. Fd. — . REPAIRS. 323 closed by its title, wherein it is declared to be 'An act to promote the safety of employes and travelers upon railroads, by compelling common carriers engaged in interstate com- merce to equip their cars with automatic couplers, etc. The general purpose is to promote the safety of employes and travelers; but the immediate purpose of the act is to pre- scribe a way of doing this, namely, by compelling common carriers to equip their cars with automatic couplers. The method or means by which the ultimate good is expected to be accomplished is the subject of the enactment. The safety of the employes, etc., is a thing beyond an expected result of the enactment, which latter is the substantive thing be- fore us for interpretation. True, we should have regard to the result intended for it, but we cannot carry into it words foreign to its meaning, or strain those used beyond their fair import." ''When we come to the enactment itself we find that in the second section it corresponds with what the title has heralded. It forbids the use of cars which have not been equipped with automatic couplers, which are a little more fully defined by adding that they are to be such as will ob- viate the necessity of going between the cars to uncouple them, or, as we are disposed to think, couple them. And this is all there is of the statute which by direct language im- poses the duty upon the carrier in respect to the use of automatic coupling. But it is necessarily implied that the railroad company shall keep up the equipment, for it forbids the use of the cars without it. In this connection it seems proper to refer to the last clause in section 2 which is: 'And which can be uncoupled without the necessity of men going between the ends of the cars.' We understand this to be a part of the description of the type of the automatic couplings with which the cars must be equipped. And further, we may here remark that the coupling with which this car was equipped was of the kind required by the act. Section 6 declares that the use of any ear in violation of this provision of the act shall constitute an offense punishable by a fine of $100. And Section 8 declares that the employe 324 FEDERAL SAFETY APPLIANCE ACT. shall not be deemed to have assumed the risk occasioned by the failure of the railroad company to equip its cars as re- quired by the second section. Now, the statute clearly and positively devolves upon the railroad company the duty of equipping its cars with those couplers, and makes it a penal offense to use its cars without them. All this is simple enough. The company could make no mistake about it. But we can find no warrant for imposing such drastic conse- quences upon the failure of the railroad company to at all times and under all circumstances have the couplings in re- pair. One of the recogpiized rules of construction of statutes is that we are to look to the state of the law when the statute was enacted in order to see for what it was intended as a substitute, and another is that it is not to be presumed that the statute was intended to displace the former law, whether it be statute or common law, further than was fairly neces- sary to give it place and operation. Now, prior to this enact- ment, other methods were employed by railroad companies for coupling their cars — generally, if not universally, by a link and pins. And the law was that in respect of this coupling the company Avas bound to exercise that reasonable degree of diligence in keeping them in repair which was proportionate to the danger of their use. The rule was ex- pressed in various forms, but that was the substance. Con- ceiving that the new form or method of automatic coupling by impact would mitigate the danger to employes, Congress enacted this statute to compel the carrier to substitute the new form for the old in operating its cars; and, of course, it is necessarily implied that it shall be done in good faith as is always implied in the enactment of laws. If the carrier does this, it has complied with the requirement of the stat- ute, and the old method is displaced by the new. But it is now proposed to add to the obligation of the carrier by requiring that he shall be bound to see that the substituted coupling shall at all times and places l)e in good order, a burden well nigh to impossible. The coupling apparatus on railroad cars is subject at all times while they are being oper- I REPAIRS. 325 ated, to almost constant wronoh and strain and liability to breakage. Much of the time the cars are connected up in trains running on the time schedules, and under orders of train dispatchers which must be observed, or fatal and disas- trous consequences ensue. Moreover, accidents to the coup- lings or unknown defects appear at places more or less remote from repair shops. It is reasonable and just to re- quire that the carrier should exercise a high degree of care to keep the couplings in proper condition. But it seems unjust and unreasonable to say that having fultilled its utmost duty in this regard, it should be held responsible for conditions which may occur without its fault. We do not say that Congress has not the power to impose such an obli- gation as it is contended this statute imposes but what we mean to say is that if a statute seems to impo.se obligations so extraordinary and difficult to perform the courts would be bound to see whether the language employed is not susceptible of a more reasonable construction. Undoubtedly there are many cases in the multitude of statutes where the command is so imperative and unconditional that there is no escape from an exact and literal observance. The industry of counsel has accumulated a considerable number of them in his brief. In such cases if the statute is within the power of the legis- lature, there is. as the phrase goes, 'no room for construc- tion,' and the business of the court is simply to administer the law as it is written. But this in no wise relieves the court from the duty of construing statutes which are not of that character, but are subject to the amelioration which the common law affords by its rules of construction. But with regard to this statute, on turning back from the considera- tion of the consec[uences to the language employed, we find nothing which in terms imposes such an obligation. It is said to be implied; and the singular result is that instead of shading down the express language of an act so that it shall not have an effect which we cannot suppose to have been in- tended by the legislature, we should by implication infer an 326 FEDERAL S.iFETY APPLIANCE ACT. intent which, if seemingly expressed, we should be bound, if fairly possible, to suppose did not exist. Then, again, the statute is j^enal. The facts which' would be necessary to maintain a criminal prosecution are the same as those which would support a private action. The only difference would be in the greater certainty with which the facts should be proven. And in the construction of such statutes the court is not justified in extending their operation beyond the plain meaning of the language used into regions of doubt and un- certain implications. In this case we do not think it could be held as matter of law that the railroad company was guilty of a violation of the statute. In view of the evidence given at the trial, it was a question for the jury to determine as one of fact whether the railroad company should, if it had used reasonable diligence, have put the coupling in re- pair before the accident happened. "^° It is urged that, if '" "As we have said, questions have heretofore arisen in tlie courts upon the construction and application of this statute, among them the question most fully con- sidered here; and there is some conflict in their decisions. In United States v. Atchison, etc., E. Co. 150 Fed. Rep. 442; Voelker v. Chicago, etc.. Ky. Co. 116 Fed. Rep. 8G7; United States v. Illinois Cent. R. Co. 156 Fed. Rep. 185: Elmore v. Seaboard Air Line R. Co. 1.30 X. C. 506; 41 S. E. Rep. 786, and Missouri Pac. Ry. Co. v. Rrinkmeier (Kan.) 0,3 Pac. Rep. 621: 50 Am. & Eng. R. Cas, 441: similar views in regard to this stat- ute to those we have indicated as our own were expressed. It is proper to observe that the views of Judge Shiras in the Voelker case, 116 Fed. Rep. 8(57, are not there so clearly stated as in his charge to the jury printed in the record of that case, witii which we have been supplied. Op]>osed to those decisions are the views ex- pressed in United States v. South- ern Ry. Co. 135 Fed. Rep. 122, by Judge Humphrey; by Judge Whit- son in United States v. Great, etc., Ry. Co. 150 Fed. Rep. 229, and possibly for the Circuit Court of Appeals for the Eighth Circuit, in Chicago, etc., Ry. Co. v. A^'oelker, 120 Fed. Rep. 522; 65 C. C. A. 226; 70 L. R. A. 264, where the court was reviewing the ruling of Judge Shiras in 116 Fed. Rep. 867, supra. We say 'possibly,' Iwcause, there are several reasons for tliink- ing that the Court of Appeals did not intend to decide anything to tlie contrary of the construction of the statute which we approve. There were two counts in the pe- tition; one upon the statute, and the other upon the common law liability for negligence. Upon the first count the court below had charged the jury in respect to the statutory liability in accordance witli the view we take of it, and REPAIRS. 327 the courts fail to give the statute the construction that it imposes an absolute duty, it defeats the purpose of Congress in enacting it, and leaves the obligation of the carrier as vague as before. But we see no reason for this contention. The benefit of the equipment of the cars with that kind of 'safety appliances' and the maintenance thereof, which, as we think, was the purpose of the law, is secured. The ques- tion about which the difference arises is simply w^hether, in addition to supplying and maintaining the appliances, the carrier is absolutely bound to insure their constant good order, or whether it is bound only to the extent of its best endeavor. The question w^hether it has fulfilled its duty in the latter respect is no more difficult of determination than such as are constantly arising in cases where negligence is charged in other conditions."" But this case was reversed on appeal, and the rule here laid down expressly denied."* the Circuit Court of Appeals af- firmed that ruling. It appears from the report that the railroad company made three points for reversal, neither of which present- ed the question here presented. The court negatived each of them, and naturally did not go into ques- tions not raised. It reversed the judgment upon another ground. It seems obvious enougli that it is not an adverse decision. If we had thought it otherwise, we would have more anxiety about tlie cor- rectness of our view. Judge Humplirey expressed an adverse opinion, but he finally rested his judgment upon another ground. But Judge Whitson cited Judge Humphrey's opinion, and adopted the view which 1 ad been expressed by him but not made the final ground of decision." " St. Louis, etc., R. Co. v. Delk, 158 Fed. Rep. 931; 86 C. C. A. 95; 14 A. & E. Ann. Cas. 233 ; reversed in 220 U. S. 578; 31 Sup. Ct. 017; 55 L. Ed. — . If appliances are at hand so that they can be readily made, re- pairs must be at once made. "But if such means and appliances were not at hand to so remedy the said defects, the defendant would have the right, without incurring the penalty of the law, to have such cars upon which said air brakes so became defective or inoperative hauled to the nearest repair point on its line of railroad where such defects could be repaired and the cars and air brakes put in opera- tive condition; but if such defects existed at a repair point or other place where they could be repaired, as before stated, then if the defend- ant ran the train from such place when 75 per cent, of the cars there- in were not so equipped with oper- ative air brakes as required by law, it is liable for the penalty of $100 for so running such train." United States v. Chicago, etc., R. Ck). 163 Fed. Rep. 775; United States V. Atchison, etc., R. Co. 167 Fed. 696 (Appendix G) ; United States V. Soutliern Pac. Co. 1'67 Fed. 699 (Appendix G). iiaSee Section 202. 328 FEDERAL SAPETY APPLIANCE ACT. § 206. Hauling car to nearest repairing point. — Much confusion having arisen in the courts, as shown in the suc- ceeding sections, with reference to the duty of a railroad to make immediate repair while cars were in motion or transit, Congress took up the subject in 1910 and enacted a statute covering that and other requirements with ref- erence to the equipment of cars. According to that Act "all cars must be equipped with secure sill steps and efiB- cient handbrakes ; all cars requiring ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall shall also be equipped with secure handholds or grabirons on their roofs at the top of such ladder." ^'^^ By section four of this Act it is provided that if a car has been properly equipped as above stated, "and such equipment shall become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be de- fective or insecure to the nearest available point where such car can be repaired, without liability for the penalties im- posed by section four of this Act or section six of the Act of March 2, 1893, as amended by the Act of April 1, 1896,"^= if such movement is necessary to make such repairs and such repairs cannot be made, except that such repair shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from lia- bility in any remedial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with the movement or hauling of such car with such equipment which is defective or insecure, or which is not maintained in accordance with the requirements of this Act and the other Acts herein referred to ; and nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of drawbars, in revenue trains or in association with other cars that are lib This statute is set out in full ncThe Safety Appliance Acta, in Appendix D. REPAIRS. 329 commercially used, unless such defective cars contain live stock or "perishable freight." As these provisions are in a proviso, the burden is on the railway company to show that it comes within its provisions. If a car becomes defective while in transit, or while not in use in a switchyard, it may be "hauled from the place where" it is "first discovered to be detective or insecure to the nearest available point where such car can be repaired." But if the movement is not necessary to repair it, that is, if the car can be repaired at the place where it is discovered to be out of repair, then it must be repaired there without its being moved. The statute only permits the movement of the defective car when it cannot be repaired at the point of discovery and it is necessary to take it to a repairing point, and that point must be "the nearest available point." In hauling the defective car "to the nearest available point" for repairs it cannot be hauled "by means of chains instead of drawbars, in revenue trains or in association with other cars that are commercially used, unless" it con- tains "live stock or 'perishable freight.' " These provi- sions only excuse the railway company from the penalties inflicted by the Safety Appliance Acts, and does not excuse it "from liability in any remedial action for the death or injury of any railroad employee caused to" him "by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of" the Act of 1910, or the Safety Appliance Acts. This Act of 1910 only applies to defects in the particulars specified in that act and in the Safety Appliance Act; and if the car is defective in other respects — that is, in those parts that the statute makes no reference to — the car may be removed without incurring any penalty, and without any liability to an employee for injuries except such as, under the particular circumstances, the statute imposes. If a car cannot be re- moved, except with the use of chains, and it cannot be repaired at the point of discovery, then it must be taken 330 FEDERAL SAFETY APPLIANCE ACT. out of the "revenue" train in Avhich it is being hauled, "or in association with other ears that are commercially used," and hauled separately to a repairing point, unless it con- tain live stock or perishable freight. As the Supreme Court of the United States has held that the Federal Appliance Acts applies to defectively equipped ears hauled in intra- state trains,"^ it necessarily follows that a car cannot be hauled with chains in such a train to a repairing point unless loaded with live stock or perishable freight. It is also to be observed that a defective car cannot be hauled to a repairing point unless the "movement is necessary to make such repairs and such repairs cannot be made at such repair point." If the repairs can be made at the place where the car becomes defective (or its condition discov- ered), then it must be repaired there before movement, even if the car be loaded with live stock or perishable freight. Of course, the question will arise whether or not the repairs could have been made at the place where the defect was discovered. If the repairs can there be made, the decisions seem to contemplate it being made while the car is in the train; and to move it for the purpose of putting it on a switch or another track where it could be repaired would seem to be an offense. In one case, decided before this statute of 1910 Avas enacted, it was held error for the court to say to the jury that a railway company can haul a car to a place to be repaired if rcasonahly necessary }'^^ The courts will perhaps hold that the railway company must make roasonable provisions and use reasonable skill and exertions to repair defective cars at the point where their condition is first discovered, but is not bound to involve iHi Section 159. .. the engineer cannot be resorted to v. United States, 172 Fed. 194. in order to excuse the company 2b Campbell v. Spokane & I. El. from liability occasioned by a de- R. Cb. 1S8 Fed. 516. 348 FEDERAL SAFETY APPLIANCE ACT. could avail himself of the provisions of the Safety Appliance Act.-*^ So a car repairer, injured by a car standing upon a switch.^^ § 219. Proximate cause of injury. — In order to enable an employe to recover where he has been injured l)y a car not properly equipped with automatic couplers, sucli improper equipment, or the absence of an automatic coupler, must have been the proximate cause of his injury ; and he has the burden to show that such was the fact.^ But the failure to equip a car as the statute requires, by reason of which an employe is obliged to go between cars where he is injured is the proximate cause of the accident, although the cars w^ere forced together by the negligent kicking of the other cars against them.* The absence of a proper coupling must 2c Johnson v. Great Northern Ry. Co. 178 Fed. 643. 2d Erie R. 'Co. v. Russell, 183 Fed. 722: 106 C. C. A. 160. This phase of the question has been discussed somewhat at lenorth in the first part of this work. See, also, Chicago, etc., R. Co. v. King, 169 Fed. 372; Appendix G. As to an employee londing rail- road iron coming within the Act of 1908, see Tsmura v. Great Northern Rv. Co. 58 Wash. 316; 108 Pac. 774. As to a track walker under that Act, see Colasurdo v. Central R. of New Jersey, 180 Fed. 832. 3 Voelker v. 'Chicago, etc., Ry. Co. 110 Fed. Rep. 867 {injury caused while attempting to adjust a coupler) ; Crawford v. New York, etc., R. Co. 10 Amer. Neg. Cas. 166; Donegan v. Baltimore, etc., R. Co. 165 Fed. Rep. 869; Chicago, etc., R. Co. v. Kinj?, 109 Fed. Rep. 372 (decided Feliruary 3, 1909), injury occasioned wliile trying to put on a new knuckle. The question whether the defec- tive coupler was the proximate cause of the plaintiff's injury mu^t be submitted to the jury. Erie R. Co. V. Russell, 183 Fed." 722. Where the defendant cut off the pilot on an engine so that it was known as a "stub pilot" in order to comply with the Safety Appli- ance Act in putting an automatic coupler on the front end of thn locomotive, and the locomotive turned over and killed its servant, it was hold that the Act did not apply to such an instance, althouga it was claimed that it turned over because of the condition of tho pilot. Briggs v. Chicago & N. W. Ry. Ct>."l25 Fed. 745^ 4 Vf)elker v. Chicago, etc., Ry. Co. supra; York v. St. Louis, I. M. & S. Ry. Co. 86 Ark. 244; 110 S. W. 803; Sprague v. Wisconsin Central R. Co. 104 Minn. 58; 110 N. W. 104; Turrittin v. Chicago, St. P., M. & 0. R. Co. 95 jVIinn. 408; 104 N. W. 225. Where a coupler was defective, and tho plaintill' went between the cars and attempted to pull the NEGLIGENT INJURY. 349 have been the cause of the injury before a recovery can be had for a failure to comply with the statute.*^ But that the deceased employe was engaged in coupling cars at the time of his death, that the cars were not provided with automatic couplers, and that the intestate's death was caused by the old-fashioned coupler's slipping by one another, make out a prima facie ease of negligence." It should be noted coupling pin by hand, but not suc- ceeding started out when his foot caught in an unblocked switch frog and he was injured, it was held to be a question for the jury whether the defective coupler was the cause of the injury. Donegan v. B. & N. Y. Ry. Co. 165 Fed. 869. The statute does not apply to an employee injured in a collision. Campbell v. Spokane & I. E. R. Co. 188 Fed. 516. 5 Elmore v. Seaboard, etc., Ry. Oo. 132 N. C. 86:5; 44 S. E. Rep. 620; 131 N. C. 569; 42 S. E. Rep. 089; Greenlee v. Southern Ry. Co. 122 N. O. 977; 30 S. E. 115; Troxler v. LSouthera Ry. Co. 124 K C. 189; 32 S. E. 550; Mason V. Riclunond & D. R. Co. Ill N. C. 482; 16 S. E. 698; Elmore v. Sea- board Air Line Rv. Co. 130 N. C. 205; 41 S. E. 786; Southern Ry. Co. V. Carson, 194 U. S. 136; 24 Sup. Ct. 609; 4.8 L. Ed. — . Nearly all the cases now hold that an action by the government to re- cover a penalty under this statute is a civil action. United States V. Baltimore, etc., R. Co. (Appen- dix G ) ; United States v. Terminal, etc. (Appendix G, p. 325) ; United States V. Nevada County, etc., K. Co. 167 Fed. 695 (Appendix G) ; United States v. Chicago, etc., R. Co. (Appendix G) ; United States V. Denver, etc., R. Co. 163 Fed. Rep. 519; United States v. Che.si\- peake, etc., R. Co. ( Appendix G ) ; United States v. Louisville, etc., R. Co. 162 Fed. Rep. 185; United .States v. Chicago, etc., R. Co. 162 Fed. Rep. 775; United States v. Lehigh Valley R. Co. 162 Fed. Rep. 410; United States v. Philadelphia, etc., R. Co. 162 Fed. Pvcp. 403: United States v. Pennsylvania R. Co. 162 Fed. Rep. 408; United States V. Philadelphia, etc., R. Co. 162 Fed. Rep. 405; United States V. Atlantic Coast Line R. Co. (Ap- pendix G) ; Atlantic Coast Line R. Co. V. United States, 168 Fed. Rep. 175 (decided March 1, 1909) ; Wa- bash Ry. Co. V. United States, 168 Fed. Rep. 1 (decided February 3, 1909); United States v. Soutl'iern Ry. Co. 167 Fed. 699, Appendix G. 'g Mobile, etc., R. Co. v. Brom- berg, 141 Ala. 258; 37 So. Rep. 395. A brakeman was directed to cut oft" tlie two rear cars while the train was moving slowly and be- fore it reached a certain switch. The coupler being broken, he went between the cars and attempted to pull the pin by hand, but, not succeeding, started out when his foot was caught in an unblocked switch frog and he was injured. It Y>as held that the question whether the failure of the defend- ant to have the car proi)erly equipped was the proximate cause 350 FEDERAL SAFETY ArPLIANCE ACT. that there is nothing in the statute that limits the class of persons to whom the carrier shall he responsible for damages that result directly and immediately from a failure to com- ply with its provisions.^* "Though the Safety Appliance Law is primarily in the interest of employees in interstate commerce, its protection is not limited to them, but extends to all persons who without fault are injured in person or property by reason of the railroad's failure to provide the statutory safeguards," namely, grabirons.^* § 220. Assumption of risk. — By undertaking to couple a car used in interstate commerce that has not been provided with such couplings as that statute requires, the employe does not assume the risk of making the coupling. If not equipped as the act of Congress requires, "the plaintiff did not assume the risk therefrom, even though he continued in the employment of the company after such unlawful use of the cars had come to his knowledge. ' ' ^ But the usual rules of the injiiry, so as to render it liable under the Safety Appliance Act was one of fact for the jury, and that it was error for the court to direct a verdict for the defendant. Donegan v. Baltimore, etc., R. Co. 165 Fed. Eep. 869. 6* Chicago, etc., R. Co. v. King, 16n Fed. Rep. 372 (decided Febru- ary 3, 1909). 6a Atchison, T. & S. F. Rv. Co. V. United States, 172 Fed. 104. Failure to equip a train with air brakes must be the proximate cause of his injury to allow a servant of the company to recover damages for such injury. Lyon v. Charleston & W. C. Ry. 77 S. C. 928; 56 S. E. 18. Wniere an employee was standing on the running board of a loco- motive, and the train, not being equipped with air brakes, separated, which it would not have done if it had been equipped with them; and when the two sections of the train came togetlier he was injured by their impact, it was held that the proximate cause of the injury was the failure to equip the train with air brakes. Blackburn v. Cherokee Lumber Co. 152 N. C. 361; 67 S. E. 915. " Winkler v. Pliiladelphia, etc., Ry. Co. 4 Penn. (Del.) 80; 53 Atl. Rep. 90; affirmed, 4 Penn. (Del.) 387; 56 Atl. Rep. 112; Chicago, etc., Ry. Co. v. Voelker, 129 Fed. Rep. 522; 65 C. C. A. 65; 70 L. R. A. 264; Mobile, etc., R. Co. T. Bromberg, 141 Ala. 258: 37 So. Rep. 395; St. Louis, I. M. & ,S. Ry. Co. V. Xe.ll, 71 Ark. 44.1; 78 S. iv. 220; York v. St. Louis, L M. & S. R. Co. 86 Ark. 244; 110 S. W. 803; Atlantic Coast Line R. Vo. V. United States, 168 Fed. 175; Texas & P. Ry. Co. v. Swear- ingen, 122 Fed. 193; Norfolk & W. R. Co. V. liazelrigg, 170 Fed, 551; NEGLIGENT INJURY. 351 concerning the duties of a master to supply safe places for the servant apply ; and the servant assumes the risks incident to his employment. By soliciting work he represents that he is competent to perform the work solicited.* Upon this question the Supreme Court has made the following observa- tions: "It is enacted by Section 8 of the act that any em- ploye, injured by any car in use contrary to the provisions of the act, shall not be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase 'assumption of risk' was the establishment of the exception to the liability of a master for the negligence of his servant when the person injured was a fellow servant of the negligent man. Whether an actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a conception of justice and convenience, does not matter for the present purpose. Both reasons are suggested in the w^ell known case of Farwell V. Boston & Worcester R. R. Co.^ But, at the present time, the notion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to danger- ous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated when he sub- mitted his person to them. In this class of cases the risk is said to be assumed because a person who freely and volun- tarily encounters it has only himself to thank if harm comes, on a general principle of our law\ Probably the modifica- tion of this general principle by some judicial decisions and Johnson v. Great Northern Rv. Co. Ooley v. North Carolina R. Co. 120 178 Fed. 643; Luken v. Lake Shore N. C. 422; 40 S. E. 195; 57 L. R. & M. S. Rv. Co. 248 111. 377; 94 A. 817; Denver & R. G. R. Co. v. N. E. 175 '(Illinois statute) ; St. Gannon, 40 Colo. 195; 90 Pac. 853. Louis & S. F. R. Co. v. Delk^ 158 » Winkler v. Philadelphia, 4 Fed. 931; St. Louis Cordage Co. v. Penn. (Del.) 80; 53 Atl. Rep. 90, Miller, 126 Fed. 495; Plummer v. IMalott v. Hood, 201 111. 202; 66 Northern Pacific Ry. Co., 1.^2 Fed. N. E. Rep. 247; 99 111. App. 360. 206; United States v. Atlantic 9 4 Met. 49. Coast Line R. Co. 153 Fed. 918; 352 FEDERAL SAFETY APPLIANCE ACT. by statutes like Section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist. Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended or foreseen. He is held to as- sume the risk upon the same ground.^" Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particu- lar harm. The preliminary conduct of getting into the dan- gerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligence. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negli- gence still open to the master, a matter upon which we ex- press no opinion, then, unless great care be taken, the serv- ant's right will be sacrificed by simply charging him with a.ssumption of risk under another name. Especially is this true in Pennsylvania, where some cases, at least, seem to have treated assumption of risk and negligence as controvertible terms. ^^ We cannot help thinking that this has happened in the present case, as well as that the ruling upon Sehlemmer's negligence was so involved with and dependent upon errone- ous views of the statute that if the judgment stood the stat- ute would suffer a wound. To recur for a moment to the facts, the only ground, if any, on which Schlemmer could be charged with negligence is that when he was between the tracks he was twice warned by the yard conductor to keep 1" Choctaw, Oklahoma & Gulf R. Fa\. 207; afTirming 52 C. C. A. R. Oo. V. McDade, 191 U. R. 64, 260; 114 Fed. Rop. 458. 68; 24 Sup. Ct. Rep. 102; 48 L. NEGLIGENT INJURY. 353 his head down. It is trup that he had a stick, which tho rules of the company required to be used in couplinj?, but it could not have been used in this case, or at least the con- trary could not be and was not assumed for the purpose of directing a nonsuit. It was necessary for him to get be- tween the rails and under the shovel car as he did, and his orders contemplated that he should do so. But the opinion of the trial judge, to which, as has been seen, the Supreme Court refers, did not put the decision on the fact of warn- ing alone. On the contrary, it began with a statement that an employe takes the risk even of unusual dangers, if he has notice of them and voluntarily exposes himself to them. Then it went on to say that the deceased attempted to make the coupling with the full knowledge of the danger, and to imply that the defendant was guilty of no negligence in using the arrangement which it used. It then decided in terms that the shovel car was not a car within the meaning of Section 2. Only after these preliminaries did it say that, were the law otherwise, the deceased was guilty of contribu- tory negligence; leaving it somewhat uncertain what the negligence was. It seems to us not extravagant to say that the final ruling was so implicated with the earlier errors that on that ground alone the judgment should not be al- lowed to stand. We are clearly of opinion that Schlemmer's rights were in no way impaired by his getting between the rails and attempting to couple the cars. So far he was saved by the provision that he did not assume the risk. The negli- ence, if any, came later. We doubt if this was the opinion of the court below. But suppose the nonsuit has been put clearly and in terms on Schlemmer's raising his head too high after he had been Avarned. Still we could not avoid dealing with the case, because it still would be our duty to see that his privilege against being held to have assumed the risk of the situation should not be impaired by holding the same thing under another name. If a man not intent on suicide, but desiring to live, is said to be chargeable with 11 Patterson v. Pittsburg & C'on- nellsville R. E. Co. 76 Pa." St. 389. 354 FEDERAL SAFETY APPLIANCE ACT. negligence as matter of law when he miscalculates the height of the car behind him by an inch, while his duty requires him, in his crouching position, to direct a heavy draw bar moving above him into a small slot in front, and this in the dusk, at nearly nine of an August evening, it is utterly impossible for us to interpret this ruling as not, however unconsciously, introducing the notion that to some extent the man had taken the risk of the danger by being in the place at all. But whatever may have been the meaning of the local courts, we are of opinion that the possibility of such a minute miscalculation, under such circumstances, whatever it may be called, was so inevitably and clearly at- tached to the risk which Schlemmer did not assume, that to enforce the statute requires that the judgment should be re- versed."^- The provisions of this statute cannot, however, be applied to an instance of "kicking" cars onto a switch.^^ A switchman engaged in handling a freight car having a defective coupler, on a track which is principally used for handling freight trains, although occasionally cars are brought upon the track for repairs, does not assume the risk arising from the defect in such coupler, when he is not en- gaged in moving the car as one in bad order with a view to its isolation or repair.^^ 12 f=ichlemiDer v, Buffalo, etc., R. Co. 205 U. S. 1 ; 28 Sup. Ct. Rep. 616; 51 L. Ed. 681; reversing 207 Pa. St. 198; 56 Atl. Rep. 417. This case was again tried and the plaintiff defeated. It was af- firmed on appeal. Sehlemmer v. Buffalo, etc., R. 'Co. 222 Pa. 470; 71 Atl. 1053; and on appeal to the Supreme Court of the United States the case was again affirmed on the ground of contributory neg- ligence in the deceased. Schlem- mer V. Buffalo, R. & P. Ry. Co. 220 U. S. 590; 31 Sup. Ct! 561; 55 L. Ed. 596. i"! Chicago, etc., Rv. Co. v. Voel- ker, 129 Fed. Rep. 522; 65 C. C. A. 65; 70 L. R. A. 264; reversing 116 Fed. Rep. 867. This is the only point upon which this case was reversed; on all other points the first decision is an authority. 14 Chicago, etc., R. Co. v. Voel- ker, supra. "It cannot be a-s- sumed that by the passage of a salutary law designed for the protection of those engaged in haz- ardous occupations, Congress in- tended to offer a premium for carelessness or to grant inunimitv from tlie consequences of negli- gence. The reasonable r-onclusion is that the defense of contributory nogligencx^ is as available to a rail- road company after as before the passage of the act of Congress, al- though it has not complied with NEGLIGENT INJURY. 355 § 221. Contributory negligence of plaintiff. — While an employee of a railroad does not assume the risk in coupling a car not equipped with automatic couplers, yet if he had been guilty of negligence contributing to his injuries it has been held he could not recover. If, in "using such unlaw- ful coupler, the plaintiff contributed to the accident by his own carelessness, he cannot recover, notwithstanding the fact that the coupling was unlawful. In such a case he must take the consequence of his own contributory negli- gence." *'It is the duty of the servant, as well as the master, to exercise care and prudence in all cases com- mensurate with, the risk or danger of the employment. Therefore, if the plaintiff contributed to the accident by bis own negligence he cannot recover. "^^ It is not con- tributory negligence, however, in the employee to attempt to couple or uncouple a car not equipped as the act of Congress requires ; and he may recover if he does if his injuries "resulted from such unlawful use alone." ^® For an employe to remain in the railway company's service, Imowing that the cars had not been equipped with auto- matic couplers, is not contributory negligence. ^^ The em- ploye must use ordinary care to avoid an injury.^^ If the its requirements." Denver, etc., Eep. 372 (decided Fefcniary 3, R. Co. V. Arrighi, li29 Fed. Ee;). 1909). 347. The Government is entitled " Winkler v. Philadelphia, etc., to recover the statutory penalty R. Co. 4 Penn. (Del.) 80; 53 Atl under all circumstances where an Rep. 90; affirmed 4 Penn. (Del.) injured emplove has, under the 387; 56 Atl. Rep. 112; IVtobile, statute, the benefit of denial of etc., R. Co. v. Bromberg, 141 Ala. assumption of risk. United States 258; 37 So. Rep. 395; Voelker v. V. Atlantic, etc., R. Co. 153 Fed. Chioa.eo, etc., Ry. Co. 116 Fed. Rep. 91i8. Rep. 867; Denver, etc., R. Co. v. The Safety Appliance Act would Arrighi, 129 Fed. Rep. 347. be honored only in their breach if is Winkler v. Philadelphia, etc., the same facts that would defeat R. Oo. swpr^. the employee under the common- 1 7 Elmore v. Seaboard, etc., Ry. law rule of assumed risk can bo Co. 132 N. 'C. 865; 44 S. B. Rep. used to defeat him under the name 620; 131 N. C. 569; 42 S. E. Rep. of contribvitory neglijjence. Chi- 989. cago, etc., R. Co. v. King, 168 Fed. is Cleveland, etc., Ry. Co. v. Cur- tis, 134 111. App. 565. 356 FEDERAL SAFETY APPLLVNCE ACT. servant could have coupled the cars more safely from the one side of the car than another, he must do so, if he could have done the work as well by going in on the safe side.^^ If the rules of the company require him to use a stick in coupling, he must do so if practicable ; but if not practicable, he need not do so, as where the coupler weighed 120 pounds and was six feet long.-*' In one case it was said that ''The devolution of this duty upon the carriers [to equip their cars with automatic brakes] necessarily imposed upon their servants the correlative duty of using the equipment thus furnished to them, and of refraining from going between the ends of the cars to couple or uncouple them unless com- pelled to do so by necessity."-"^ And it was held that if the couplers were in order the ser\^ant must use them, and if he did not, and was injured in coupling the cars equipped with them he was guilty of such contributory negligence 19 Mobile, etc., R. Co. v. Brom- berg, 141 Ala. 258; 37 So. Rep. 395.' 20 Fleming V. Soutliem Ry. Oo. 131 N. C. 476; 42 S. E. Rep. 905. In this case it was also held that the employee oonld recover, although he was guilty of con- tributors' negligence. The plaintiff's knowledge of the physical conditions cannot be charged against him in determin- ing the quality of his conduct in going and being l>etween the cars when he was injured. Chicago, etc., R. Co. V. King, 169 Fed. Rop. 372 (decided February 3, 1909). There are a number of cases to the same effect, which we cite. Schlemmer v. Buffalo, R. & P. Ry. Co. 220 U. .S. 590; 31 Sup. Ct. 561; 55 L. Ed. 596; affirming 222 Pa. 470; 71 Atl. 1053; Suttlc v. Choctaw, 0. & G. R. Co. 144 Fed. 668; 75 C. C. A. 470; Union Pacific R. Co. V. Brady, 161 Fed. 719: IMorris v. Duluth, S. 6. & A. Ry. Co. 108 Fed. 717; Donegan v. Baltimore & N. Y. R. Ry. Co. 165 Fed. 869 ; York v. St. Louis, I. M. & S. Ry. Co. 86 Ark. 244; 110 S. W. 808 ; Sprague v. Wisconsin Central R. Co. 104 Minn. 58; 116 N. W. 104; Turrettin v. Chicago, St. P., M. & 0. Ry. Co. 95 Minn. 408; 104 N. W. 225; iSt. Louis, I. M. & S. Ry. Co. V. York, 92 Ark. 554; 123 S. W. 376; Cleveland, C. C. & St. L. Ry. Co. V. Baker, 91 Fed. 224 ; Johnson v. Great North- ern Ry. Co. 178 Fed. 643; Toledo, St. L. & \,. R. Co. V. Gordon, 177 Fed. 152; Siegel v. N. Y. Central R. 178 Fed. 873; Norfolk & W. R. Co. V. Hazelrigg, 184 Fed, 828; Chicago, R. I. & P. Ry. Co. v. Brown. 185 Fed. 80; Gilbert v. Burlington, C. R. & K Rv. Co. 128 Fed. 529; 63 C. C. A. 27. 20a Gilbert v. Burlington, C. R. & N. Ry. Co. 128 Fed. 529; 63 C. C. A. 27. See also Suttle v. Choc- taw, 0. & G. R. Co. 144 Fed. 068; 75 C. C. A. 470. NEGLIGENT INJURY. 357 as prevented his recovering damages because of his injuries received in making the coupling of the cars so equipped. And while it is the duty of a railway company to equip its cars so they can he coupled from both sides of them without the necessity of going between them, yet if one side be not so equipped and the other is, he must go to the other side to make the coupling; and he cannot be heard to say it was dangerous to cross the tracks between the cars when the engineer is subject to his directions in moving the cars.^"^ In an action by a brakeman to recover damages for an injury received while uncoupling cars, one of which was being moved with a defective coupler, it was held error for the court to give a general instruction as to the effect of contributory negligence when the cars could have been uncoupled from the other side of the train without the necessity of going between them as the plaintiff did. The defendant asked that the court charge the jury that if they ''believe and find from the evidence that, at the time and upon the occasion of receiving the injuries sued for, the plaintiff was himself negligent, and by his own negligence contributed to the injuries sustained by him and sued for herein, and that, but for such negligence upon the part of the plaintiff, if any there was, such injury could not have happened to or been sustained by him," then they must find for the defendant. The coiu't refused to give this in- struction and did not give another covering it; and this was held erroneous.^°° Upon a second trial a judgment was again given for the plaintiff; and this M'as affirmed on appeal, the court holding the brakeman being inexperi- enced and Avas doing switching work in the defendant's railroad yards in weighing cars which were required to be 20b Union Pacific R. Co. v. Bra- Fed. 529; 03 C. C. A. 27; Suttle dy, 161 Fed. 719; 88 C. C. A. v. Choctnw, 0. & G. R. Co. 144 579 ; Morris v. Duluth, S. S. & A. Fed. 668 ; 75 C. C. A. 470. Ry. Co. 108 Fed. 747; 47 C. C. A. 20c Norfolk k, W. Ry. Co. v. Ha- 661; Norfolk & W. R. Co. v. Hazel- zelrigg, 170 Fed. 551; 95 C. C. A. rigg, 170 Fed. 551; Gilbert v. Bur- 637. lington, C. R. & N. R. Co. 128 358 FEDERAL SAPETY APPLIANCE ACT. uncoupled as they were weighed, and who, when the lever on a car on the side of train where he was working would not uncouple two cars because of a defect, went between the cars as he had seen others do, and was injured, cannot be held chargeable as a matter of law with contributory negligence, because he did not go around the train and try the lever on the other side; and whether or not he was chargeable with contributory negligence in going between the cars to uncouple them, whereby he Avas injured, was a question for the jury, who might take into consideration his knowledge and experience in the work. The plaintiff testified that he did not know there was a lever on the other side of the connecting car, as there was.-""^ Where a brake- man went between the cars to get to the other side to couple the cars with a lever when he could have gone across the zodN'orfolk & W. R. Co. v. Ha- zelrigg, 184 Fed. 828. The court cites Bhunenthal v. Craig, 81 Fed. 320; 26 C. C. A. 427: George v. Clark, 85 Fed. >608; 20 C. C. A. 274; Wheeler v. Oak Harbor Head Lining & Hoop Co. 126 Fed. 348; 61 C. C. A. 250; and ]\IielHgan Headling & Hoop Co. v. Wheeler, 141 Fed. 61; 72 C. C. A. 71, upon the question of the youthfulncss or inexperience of the plaintiHT. The court reviewed the cases cit^d above before a discussion of the case in liand was herein assumed, as follows: "In the Morris^ Gilbert and Suttle cases it was held that the act of the brakeman in going between the cars instead of using the lever on the opposite side was negligence as matter of law. The Brady case is in harmony with the other three cases. We think the case before us is readily distin- guishable upon its facts from each of the four cases cited. In the Morris case the injured employee was the head brakeman of a crew of employees. He stepped between moving cars in the dark. The lever on the opposite side was in working order. In the Gilbert case the plaintiff was head brakeman of the switeliing crew, and was directing tne nTOvements of the train. He likewise stepped be- tween moving cars. The couplers on both sides were in good work- ing order, but the one on his side could not be pulled because the 'slack was tight.' In the Suttle case the lever on the brakeman '3 side was teninorarily disconnected, but the one on the other side was all right, and the brakeman could have reached and drawn the pin in safety by going on the platform of the caboose. Instead of doing so, he went between moving cars in the night-time. In the Brady case plaintiff was foreman of the switch- ing crew, and had had twelve years' experience as brakeman, switchman, and yardmaster. He knew it was not uncommon for a coupling appliance to require sev- eral jerks of the lever to uncouple. While he was between the cars NEGLIGENT INJURY. 359 caboose platform; and in going across the tracks he stumbled, fell and was run over and killed, it was held that there could be no recovery for his death. At the time of crossing the cars were moving together.-"® A coupler was defective, and the plaintiff went between the cars and at- tempted to pull the pin by hand, but not succeeding, started out when his foot caught in an unblocked switch frog and he was injured. It was held to be a question for the jury if the defective coupler caused the injury, and if the plain- tiff were guilty of contributory negligence.-"' Where a switchman put his hand between cars and moved along with them in uncoupling, it was held that he was not guilty of contributory negligence, the safety coupling being out of order, though he could have avoided the resultant injury by waiting until the cars stopped. There were twelve cars in a string, and there was no way practically open to the switchman to go around to the opposite side. The operation of uncoupling was to be done while the train was moving, and there was no opportunity to stop the train. When he received his injuries he could not have reached the pin lifting the rod on the adjacent car, projecting on the oppo- site side of the train, as readily as he could reach the after dark, the cars were moved side, or himself have gone around through the negligence of a fellow and operated that lever or other- servant." wise acted. If you believe from The court approved this instruc- the evidence that a brakeman oi tion: ordinary care and prudence, under "The question, then, is whether like circumstances, would have ap- or not a brakeman of ordinary care predated that danger, and would and prudence, with such experience not have gone in bpfween thos^ as plaintiff in this case had, and ears, but would have called acrooS with such knowledge of railroading to the conductor, or would have as he had, and under existing con- gone around and pulled the other ditions — i. e., under like circum- lever himself, or acted otherwise stances — would or not have than goin.s between the cars, there appreciateu the danger of going can be no recoverv in this case." in between those ears, and have 2oe Suttle v. Choctaw, 0. & G. R. refrained from going in between Co. 144 Fed. &68; 75 C. C. A. them, and, instead of doing so, 470. would have called over to the con- ^of Donegan v. Baltimore & N. Y. duetor to operate the lever on his R. Co. 16i5 Fed. 869. 360 FEDERAL SAFETY APPLLVNCE ACT, pin itself. The court considered that he was compelled to do as he did "by necessity" within the meaning of the quotation above set forth,-"° "In our judgment, 'the neces- sity' existed in the case under consideration; for in large yards, where safety appliances refuse to work, to let the cars go uncoupled under the circumstances disclosed here, might result in blocking the operation of the whole road. There is nothing in the facts before us that show that the defendant in error [the plaintiff] might, vdthout violating his duty or doing injury to the road, have stopped the operation of the train until he could have gone around on the other side. ''Nor can we believe that the interpretation put upon this Act, in the part just quoted from the opinion in Gilhert v. B. C. R. d- N. R. Co., is the one intended by Congress. To our minds, the act was intended, not to increase the diffi- culty of getting compensation for injuries sustained, but to decrease the number of cases in which injuries would happen. It abolishes, in terins, assumption of risk. And where there exists a practical necessity, such as confronted this switchman, to uncouple the cars by some means other that the defective lever, what is done is assumption of risk. Putting his arm between the cars, under such circumstances, and traveling with them, is not per sc contributory negli- gence. If there be contributory negligeuee at all, it depends, not upon his assuming the risk under the circumstances dis- closed, but upon the degree of care with which he acts while in the performance of the work under the assumed risk; and that question, we think, all things considered, was fairly submitted to the jury in the instruction of the court. ""'^^^ Where a brakeman was ordered to m.ake a coupling with a coupler that had been out of order for five months, to the railroad company's knowledge, and he was injured in 20g Gilbert v. Burlin^n, C. R. 2"li Chicago, R. I. & P. Ry. Co. & N. Ry. Co. 128 Fed. 529; 03 v. Bro\ra, 185 Fed. 80. C. C. A. 27. NEGLIGENT INJURY. 361 obeying the order, it was held that he was not guilty of contributory negligence.-"' An experienced brakeman, having been in service fifteen or sixteen years, undertook to couple a shovel car, having an iron drawbar, weighing about eighty pounds, and protruding beyond the end of the shovel ear. The end of this drawbar had a small opening, or eye, into which an iron pin was to be fitted when the coupling was made; this was to be affected by placing the end of the drawbar into the slot of the automatic coupler with which the caboose was equipped. Owing to the differ- ence in height, the end of the shovel car would pass over the automatic coupler on the caboose in case of an unsuc- cessful attempt to make the coupling; and the end of the shovel car would come in contact with the end of the caboose. At the time when he undertook to couple the train with the shovel car to the end of the caboose, he went under the end of the shovel car, and attempted to raise the iron bar so as to cause it to fit into the slot of the automatic coupler on the caboose. While so doing, his head was caught between the ends of the shovel car and the caboose, and he was almost instantly killed. The situation was plainly observable. It was held that there could be no recovery for his death. He was twice expressly cautioned at the time as to the danger of doing as he did.^**-" 20i Elmore v. Seaboard Air Line could be worked, see 'St. Louis, L Ey, Co. 130 N. C. 506; 41 S. E. M. & S. Ry. Co. v. York, 92 Ark. 786. 554; 123 S. W. 376. 20j Schlemmer v. Buffalo, R. & P. If the coupling be out of work- Ry. Co. 222 Pa. 470; 71 Atl. 1053; ing order, then it is not contribu- affirmed 220 U. S. 590; 31 Sup. tory negligence to go between the Ct. 561 ; 55 L. Ed. — . A like cars to couple them. Sprague v. holding was had on the first ap- Wisconsin Central R. Co. 104 Minn, peal, 207 Pa. 198; 56 Atl. 417, 58; 116 N. W. 104; Ttirrettin v. but the case was reversed by the Chicago, St. P. M. & 0. R. Co. United States Supreme Court. 5,05 95 Minn. 408; 104 N. W. 225; U. S. 1; 27 Sup. Ct. 407; 51 L. York v. St. Louis, I. M. & S. Ry. Ed. 681. Co. 86 Ark. 244; 110 S. W. 803. For a case holding it contribu- In the absence of gi-abirons it tory negligence not to go to th? Avas held in an early case that other side of a car where a lever the jury was to consider whether 362 FEDERAL SAFETY APPLIANCE ACT. § 222. Contributory negligence does not defeat the action. — The questions of coutributory negligence discussed in the preceding section are not of as much importance as they may seem when the action is brought by an employee injured by a defective coupling or grabiron upon an inter- state train or car, or car moving over or used on a railroad used as a highway of interstate commerce as would at first blush seem, in view of the Employers' Liability Act of 1908. It is only an interstate railroad company, or one en- gaging in interstate traffic, that is required to equip its cars with automatic brakes and couplers and handgrabs or handholds; and consequently all employees engaged on such cars are within the provision of this Act of 1908. In none of the cases cited in the previous section is this question raised or discussed, or even, we believe, alluded to. By the Act of 1908 in all actions brought against a common carrier by railroad for injuries to an employee occasioned while engaged in commerce between any of the several states or territories; or between the District of Columbia, or any of the states or territories and any foreign nation or nations, the fact that he may have been guilty of con- tributory negligence will not bar a recovery, but his damages will be diminished by the jur}^ in proportion to the amount of negligence attributable to him. If the violation by the common carrier of any statute enacted for the safelj' of employees contributed to an employee's injury or death, then he cannot be deemed guilty of contributory neg- ligence.^^^ As we have said, this statute is applicable to an employee injured by a defective coupler on an interstate car or a car used on a highway of interstate commerce; and or not the plaintiff was guilty of ^ok This statute is discussed at contributory negligence in at- length in the first part of this t<'mpting to couple cars. Clevo- work, land, C. C. & St. L. Ry. Co. v. Baker, 91 Fed. 224. NEGLIGENT INJURY. 363 even though he has been guilty of contributory negligence, that will not defeat his cause of action. This question has been decided in the affirmative. In that case the coupler on a car being used in interstate commerce was so defective that it would not couple automatically by impact, and an employee in the performance of his duty, was caught be- tween the cars and injured, the violation of the statute by the company being a contributory cause of the injury, which rendered it liable therefor. It was held that the question of assumption of risk and contributory negligence was imma- terial. This employee was charged with the duty to see that the coupling of the cars and of the air brake pipes upon cars standing upon a switch track to be transferred to an- other company. Some of these cars were being used in inter- state commerce. It was held that he was employed in interstate commerce, and vvas Vv'ithin the provision of the Act of 1908.'°' Inasmuch as negligence on the part of the plaintiff reduces the amount of damages he would other- wise recover, a discussion of those cases in which contributory negligence has been iuA^'olved in safety appliance in- juries becomes important in order to measure the amount of recovery. -*^"^ § 223. Two acts of negligence combining to produce in- jury.— Two acts of negligence may so combine as to pro- duce an injury, one of which is a violation of the Safety Appliance Act with reference to automatic couplers. In such an instance the company will be liable, although but for the combination the injury would not have been inflicted.^^ And a violation of the Safety Appliance Act may always be con- sidered by the jury in determining whether or not the de- fendant company was negligent, so far as its duty was con- 201 Johnson v. Great Northern nte of 190S applies to an injiirv Ry. Co. 178 Fed. 643. occasioned by a defective coupler 20in There is the merest intima- on an interstate railroad, tion in Schleramcr v. Buffalo, etc., 21 Voelker v. Chicago, etc., Ry Ry. Co. 220 U. S. 590; 31 Snp. Ct. Co. 116 Fed. Rep. 867. 561 ; .55 L. Ed. 596, that the stat- 364 FEDER.VL SAPETY APPLLiNCE ACT. cerned towards the employe who was injured while coupling cars not equipped with automatic brakes as the statute re- quired. -- § 224. State courts may enforce liability for negligence in- curred under statute.— The state courts have the power to entertain suits to recover damas'es received by reason of a violation of the Safety Appliance Statute.^^ A number of eases have reached the highest courts of several states which had been brought upon the federal statute.-* And at least two of these have been carried to the Supreme Court of the United States, and eitlier reyersed or affirmed; and the ques- tion of the state court's jurisdiction never raised. And it has been expressly decided that this federal statute is bind- ing upon a state court and must be applied when the plead- ings and facts proven show the case falls within its provisions.-^ 22 Crawford v. Xew York, etc., R. Co. 10 Am. & Eng. Neg. Cas. 1G6; see Chicago, etc., R. Co. v. King, 169 Fed. Rep. 372 (decided February 3, 1909). 23 St. Louis, etc., R. Oo. v. Tay- lor, 210 U. S. 281; 28 Sup. Ct. Rep. G16; Schleinmer v. Buffalo, etc., Ry. Co. 205 U. S. 1 ; 27 Sup. Ct. Rep. 407; 51 L. Ed. 681; re- versing 207 Pa. St. 198; 56 Atl. Rep. 417; Southern Pac. R. Co. v. Allen, 48 Tex. Civ. App. 66; 106 S. \V. Rep. 441; Mobile, etc., R. Co. V. Bromberg, 141 Ala. 258; 37 So. Rc'p. 395 : Crawiord v. Xew Yor c, etc., R. Co. 10 Am. & Eng. Xeg. Cas. IGG. 24 .Missouri Pac. Ry. Co. v. Brinklemcier, 77 Kan. 14; 93 Pac. Rep. 621; Soutliern Pac. R. Co. v. Allen, 48 Tex. Civ. App. 66; 106 S. VV. Rep. 441 ; Chicago, etc.. Ry. Co. V. State, 86 Ark. 412; 111 S. W. Rep. 456; Cleveland, etc., Ry. Co. V. Curtis, 134 111. App. 565; Nicholas V. Chesapeake, etc., Ry. Co 127 Ky. 310; 105 S. W. Rep. 4<81; 32 1-.J. L. Rep. 270. See Harden v. North Carolina R. Co. 129 N. €. 354; 40 S. E. Rep. 184; 55 L. R. A. 7i84. 25 Mobile, etc., R. Co. v. Brom- berg, 141 Ala. 258; 37 So. Rep. 395: Kansa.3 Citv, etc., R. Co. v. Flippo, 138 Ala. 487; 35 So. Rep. 457 ; York v. .St. Louis, I. M. & S. Ry. Co. 86 Ark. 244; 110 S. W. 803 ; Spragtie v. Wisconsin Central R. Co. 104 Minn. 58; 116 N. W. 104; Turrettin v. Cliicago, St. P., M. & 0. R. Co. 95 :Minn. 408; 104 K W. 225; St. Louis. I. M. .% S. Ry. Co. v. York, 92 Ark. 554; 123 S. W. 376; Elmore v. Seaboard Air Line Ry. Co. 130 X. C. 205; 41 S. E. 786; Schlemmer v. Buf- falo, etc., Ry. Go. 207 Pa. 198; 56 Atl. 417;' reversed 205 U. S. 1: 27 Sup. Ct. 407; 51 L. Fxl. 681; Sehlemmer v. Buffalo, etc., Ry. Co. 222 Pa. 470; 71 Atl. 1053; a£- NEGLIGENT INJURY. 365 § 225.. Removal of case to federal court. — As the injured employe, when he bases his cause of action upon the terms of the federal statute, can bring his suit in the federal court, the defendant can insist, when the suit is brought on the statute in a state court, if the amount demanded is two thousand dolhirs or more, that it be removed into the proper federal court. One case on this question was deter- mined in one of the circuit courts. The court assumed the statute was valid, and then proceeded to discuss its remov- ability into the federal court: "Does it follow that the case is a removable one? It is the contention of the plain- tiff that the cause of action does not arise under this act of Congress, or at least that it does not so appear from the allegations of this petition. It is undoubtedly true that under the Act March 3, 1887, c. 373,-*' and Act August 13, 1888, c. 866,-^, a case not depending on diversity of citizenship cannot be removed from a state court into the Circuit Court of the United States, as one arising under the Constitution or law of the United States, unless that fact appears by the plaintiff's own statement of his cause of action; and if it does not, the fact cannot be supplied by the petition for removal.-^ But the court takes notice of the laws of Con- gress, and, if the facts stated by the plaintiff as the basis of his right of recovery show a right of action given or created by such law, then it may fairly be said that it appears from his own statement of his claim that the action is one arising under a law of the United States. If the same facts show, also, a right of action created or given by a state law, still it would be for the court to determine under which statute the action was maintainable, if at all; firmed 220 U. S. 590; 31 Sup. Ct. 26 24 Stat, at L. 552. 561; 55 L. Ed. — ; Neal v. St. 27 25 Stat, at L. 433 (U. S. Louis, I. M. & S. R. Co. 71 Ark. Comp. St. 1901, p. 509). 445; 78 S. W. 220; St Louis, I. 28 citing Chappel v. Waterworth, M. & S. R. Co. V. Neal, S3 Ark. 155 U. S. 102; 15 Sup. Ct. Rep. 591; 98 S. W. 958; aflTirmed 210\J. 34; 39 L. Ed. 85; roversing 39 S. 281: 28 Sup. Ct. 616; 52 L. United States v. Atlantic Coast Ed. 1061. See Georgia Pac. R. Co. Fed. Rep. 77; Third St. R. Co. v. V. Davis, 92 Ala. 307; 9 So. Rep. Lewis, 173 U. S. 457; 19 Sup. Ct. 253; 25 Am. St. Rep. 47. Kep. 451; 43 L. Ed. 766. 366 FEDERAL SAFETY APPLLVNCE ACT. and if one construction of the federal statute would sustain, and another construction would defeat, a recovery under that statute, the action would be one arising under a law of the United States, and therefore of federal cognizance.^^ It sufficiently appears, therefore, from plaintiff's petition that the cause of action as alleged therein is one arising under a law of the United States," the Act of June 11, 1906.^" The right to remove a case, brought to recover damages, because of a failure to equip a car is now purely academic; for the amendment to the Act of Employers' Liability Act of 1908 provides that no case arising under "and brought in any state court or competent jurisdiction shall be removed to any court ol the United States. "^"^ § 226. Judicial notice. — A state court will take, and is bound to, notice of the Safety Appliance Act.'^^ ^ 227. Pleading-. — It is not necessary in bringing an ac- tion nuder the federal statute to specifically refer to it; 2i» Citins^ Starin v. New York, 115 U. >S. 248: 6 Sup. Ct. Rep. 28: 29 L. Ed. 388; affirmincf 21 Fed. Rop. 55)3: Carson v. Dunham, 121 U. S. 421; 7 Sup. Ct. Rep. 1030: 30 L. Ed. 992. 30 Hall V. Chicag:o,' etc., R. Co. 149 Fed. Rep. 5G4." If the construction of the Safety Appliance Acts be not drawn into question the case cannot be re- moved to the Federal Court, even thouph it l)e alleged in the com- plaint or declaration that the train was an interstate one, and not properly equipped with automatic couplers. Myrtle v. Nevada Countv & D. Ry. Co. 137 Fed. 193; St. I>nuifi. I. ]\r. & S. R. Co. V. Xeal, 83 Ark. 591; 98 S. W. 958; Inte;-- national & C. N. Ry. Co. v. Elder, 44 Tex. Civ. App. G05; 99 S. W. 856. Where an action was brought, based upon the Federal statutes, and then removed into the Federal Court, and then dismissed by the plaintiff, and the plaintiff then l)i-oug]it a common-law action for this same injury, it was held that the latter case could not be re- moved into the Federal Court. .Shohoney v. Quiney, 0. & K. R. Co. 223 Mo. 649 ; 1*22 S. W. 1025. 30* See Appendix A. 31 Mobile, etc., R. Co. v. Brom- berg, 141 Ala. 258; 37 So. Rep. 395: Kansas City, etc., R. Oo. v. Flippo, 138 Ala. 487; 35 So. Rep. 457. That courts will examine public documents in construing a statute, see Johnson v. Southern Pacific Co. 196 U. S. 1; 25 Sup. Ct. 158; 49 L. Ed. 363; Chicago, M. & St. P. Ry. Co. 129 Fed. 522. NEGLIGENT INJURY. 367 in fact, it is not good pleading to do so. "As a matter of pleading, it certainly cannot be said that, in order to base a right of recovery on the provisions of the statute, it was necessary to cite the statute or its provisions in the petition. The petition in set words charged the defendant with negli- gence in having and operating a car upon which was a defective, worn out and inoperative coupler which would not couple by impact. Charging the defendant with negli- gence was charging that the company had not met or ful- filled the duty imposed upon it by law with respect to having and keeping the coupler upon the car in proper con- dition for use. It was not necessary, nor, indeed, per- missible, under the rules of pleading, that the petition should set forth the law which had been violated.^- * * * Therefore, when the petition charged the defendant with negligence with respect to the coupler upon the car the de- fendant must have known, as the car was used in interstate traffic, the act of Congress would necessarily come into con- sideration in defining the obligations resting upon the de- fendant company." ^^ 32 "It is not for one moment meier, 77 Kan. 14; 93 Pac. Re]), supposable that the officers of the 621; 50 Am. & Eng. E. Cas. defendant company or the learned (KS.) 441; Kansas City, etc., K counsel representing it in this case Co. v. Flippo, 138 Ala. 487 ; 35 are not, and were not, when this So. Rep. 457. See Lewis v. Penn- action was commenced, fully aware sylvania R. Co. 2'20 Pa. 317; Of' of the provisions of the act of Atl. 821. Congress of March 2, 1893, and It has been held that it need not the acts of the General Assembly he alleged or proved that the de- of the State of Iowa, which now fective car was loaded with inter- form Sections 2079 and 2083, both state traffic. Felt v. Denver & R. inclusive, of the code of the state, G. R. Co. 48 Colo. 249; 110 Pac. and therefore knew that as cars 113G. used in interstate traffic the obli- If the complaint charge that the gations of the act of Congress were railroad runs through several in force, and as to cars used with- states, evidence to show that it in the State of Iowa the named was engaged in interstate corn- sections of the code were appli- merce is admissible. ^Missouri Pa- cable." From the opinion above cific Ry. Co. v. Brinkmeier, 77 quoted from. Kan. 14; 93 Pac. 021. 33 Voelker v. Chicago, etc., Ry If tlie answer does not deny Co. 116 Fed. Rep. 867. Approved, that the car was used in interstate Missouri Pac. Ry. Co. v. Brink- commerce, the allegation that it 368 FEDERAL S.VFETY APPLIANCE ACT. § 228. Validity of section concerning releases from lia- bility. — Statutes similar to section five conceraing a servant agreeing to exempt his master from liability for his in- juries have been held valid in a number of states. A statute prohibiting such a contract is constitutional and within the power of a legislature to adopt on the ground of public policy.^* was so tised need not be proved. Norfolk &, W. Hy. Co. v. Hazelrigg, 170 Fed. 551. Where the action is a common- law one, evidence that all roads were discarding the "Leeds" coup- lers and using automatic couplers was held not admissible. Sho- honey v. Quincy & 0. K. E,. Co. 223 Mo. 649; 122 S. W. 1025. In a case in the United States Court for the District of North Carolina, the court held an action to recover a penalty a ci^il ac- tion, and that it was not necessary XX) allege the specific date of the violation of the statute. United States V. Atlantic, etc., Ey. Co. 153 Fed. Rep. 918. In Alabama, very general terms, little short of conclusions, may be used in pleading. Kansas City, etc., Pt. Co. V. Flippo, 138 Ala. 48?'; 35 So. Rep. 457; adopting Georgia Pac. R. Co. v. Davis, 92 Ala. 307; 9 So. Rep. 253; 25 Am. St. Rpp. 47. In this state the complaint need not contain an al- legation stating in what manner the failure to comply with the statute caused the injury. Mobile, etc., R. Co. v. Bromherg, 141 Ala. 258; 37 So. Rep. 395. 3* Pittsburg, etc., R. Co. v. Mont- gomery, 152 Ind. 1; 45 N. E. Rep. 582; Pittsburg, etc., R. Co. v. Hosea, 152 Ind. 412; 53 K E. Rep. 419; Kilpatrick v. Railroad Co. 74 Vt. 288; 52 Atl. Rep. 531; 93 Am. St. Rep. 887; Goldenstem V. Baltimore & 0. Ry. Co. 37 Wash. L. Rep. 2; Weir v. Roun- tree, 173 Fed. 776; Atlantic Coast Line v. Riverside Mills, 219 U. S. 186; 31 S. C. 164; 55 L. Ed. 167; affirming 168 Fed. 990; Mc- ISTamara v. Washington Terminal, 35 App. D. C. 230; Louisville & N. R. Co. V. Scott, 219 U. S 209; 31 ,Sup. Ct. 171; 55 L. Ed — ; Chicago, B. & Q. R. Co. v MeGuire, 219 U. S. 549; 31 Sup Ct. 259; 55 L. Ed. — ; affirming 138 Iowa, 664; 116 N. W. SOI, Norfolk & W. Rv. Co. v. Dixie, 111 Va. 813; 69 S. E. 1106. A statute forbidding a contract that the employee shall not recover damages if he accepts relief from a relief association has been sus- tained. ]McGuire v. Giicago, etc., R. Co. 131 Iowa, 340; 108 X. W. Rep. 902, contra. Shaver v. Penn- sylvania Co. 71 Fed. Rep. 331. CHAPTER XIV. ACTION TO RECOVER PENALTY. SECTIOTe held to have been guilty of contributory negli- APPENDIX A. 399 Sec. 3. That no contract of em- ployment, insurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employe, nor the acceptance of any such insurance, relief benefit, or indemnity by the person enti- tled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employe: Provided, however, That upon the trial of s.uch ac- tion against any common carrier the defendant may set off" therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employe, or in case of Ms death, to his personal representative. Sec. 4. That no action shall be maintained under this act, unless commenced within one year from the time the cause of action ac- crued. gonce in any case wliere the vio- lation by such common carrier of any statute enacted for tlie safety of employes contributed to the in- jury or death of such employe. Sec. 4. That in any action brought against any common car- rier under or by virtue of any of the provisions of this act to re- cover damages for injuries to, or the death of, anj' of its employes, such employe sliall not be held to have assumed the risk of his em- ployment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such em- ploye. Sec. 5. That any contract, rule, regulation, or device what- soever, the purpose and intent of which shall be to enable any com- mon carrier to exempt itself from any liability created by this act, shall to that extent be void: Pro- vided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such com- mon carrier may set off therein any sum it has contributed or paid to any insurance, or relief benefit, or indemnity that may have been paid to the injured em- ploye, or the person entitled thereto, on account of the injury or death for which said action was brought. Sec. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action ac- crued. Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which defendant shall 400 FEDERAL EMPLOYERS' LIABILITY ACT. Sec. 5. That nothing in this act shall be held to limit the duty of common carriers by railroads, or impair the rights of their em- ployes under the Safety Appliance Act of March 2, 1893, as amended- April 1, 1896, and March 2, 1903. Approved June 11, 1906; 34 Stat, at Large, 232 c. 3073. be doing busiacss at the time of commencing such action. The jur- isdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several states, and no case arising under this Act and brought in any state court of com- petent jurisdiction shall be re- moved to any court of the United States. (As amended April 5, 1910.) Sec. 7. That the term "com- mon carrier" as used in this act shall include the receiver or re- ceivers, or other persons or corpo- rations charged with the duty of the management of the business of a common carrier. Sec. 8. That nothing in this act shall be held to limit the duty or liability of common carriers or impair the rights of their em- ployes under any other act or acts of Congress, or to affect the prose- cution of any pending proceeding or right of action under the act of Congress, entitled, "An act relat- ing to liability ol common carriers in the District of Columbia and Territories, and to common car- riers engaged in commerce be- tween tlie States and between the States and foreign nations to their employes," approved June 11, 1906. " Approved April 22, 1908. Sec. 9. That any right of action given by this Act to a person suf- fering injury shall survive to liis or her personal representative, for the benefit of the surviving widow or husband, and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of Icin de- pendent upon sucli emploj'ee, but in such cases there shall be only one recovery for the same injury. (As amended April 5, 1910.) APPENDIX A. 401 POOR PERSON. [Public— No. 317.] [S. 583G.] An Act to amend section one, chapter two hundred and nine, of the United States Statutes at Large, volume twenty-seven, enti- tled "An Act providing when plain- tiff may sue as a poor person and when counsel shall be assigned by the ccurt," and to provide for the prosecution of writs of error and appeals in forma pauperis, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of Ameriea in Con- gress assembled, That section one of an Act entitled "An Act provid- ing vi'lien plaintiff may sue as a ]X)Or person and when counsel shnll be assigned by the court," approved July twentieth, eighteen hundred and. ninety-two, be, and the same is hereby, amended so as to read as follows : "That any citizen of the United States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prose- cute or defend to conclusion any suit or action, or a writ of error, or an appeal to the Circuit Court of Appeals, or to the Supreme Court in such suit or action, in- cluding all apjK>llate proceedings, unless the trial court siiall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the Appellate Court or give security therefor, before or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action or of such Avrit of error or appeal, or to give se- curity for the same, and that he believes that he is entitled to the redress he seeks by such suit or action or WTit of error or appeal, and setting forth briefly the nature of his alleged cause of action, or appeal." Approved, June 25, 1910. EMPLOYEES OF THE UNITED STATES. [Public— No. 176.] [H. R. 21844.] An Act granting to certain em- ployees of the United States the right to receive from it compensa- tion for injuries sustained in the course of their employment. Be it enacted by the Senate and Rouse of Representatives of the United States of America in Con- gress assembled, That when, on or after August first, nineteen hun- 402 FEDERAL EMPLOYERS' LLVBILITY ACT. dred and eight, any person em- ployed by the United States as an artisan or laborer in any of its manufacturing establishments, ar- senals, or navy-yards, or in the construction of river and harbor or fortification work or in hazard- ous employment on construction work in the reclamation of arid lands or the management and con- trol of the same, or in hazardous employment under the Isthmian Canal Commission, is injured in the course of such emplojonent, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opin- ion of the Secretary of Commeroe and Labor, be sooner able to re- sume workj the same pay as if ho continued to be employed, such payment to be made imder such regulations as the Secretary of Commerce and Labor may pre- scribe : Provided, That no compen- sation shall be paid under this Act where the injury is due to the neg- ligence or misconduct of the em- ployee injured, nor unless said in jury shall continue for more than fifteen days. All questions of neg- ligence or misconduct shall be de- termined by the Secretary of Com- merce and Labor. Sec. 2. That if any artisan or laborer so employed shall die dur- ing the said year by reason of such injury received in the course of such employment, leaving a wido-'', or a child or children under si.xteen years of age, or a dependent parent, such widow and child or chihlren and dependent parent sljall be entitled to receive, in such portions and under such regulations as the Secretary of Commerce and Labor may pre- scribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such employee were alive and continued to be employed: Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remain- ing beneficiaries under the provi- sions of this section^ if there be am'. Sec. 3. Tliat whenever an acci- dent occurs to any employee em- braced within the terms of the first section of this Act, and which results in death or a probable in- capacity for work, it shall be the duty of the official superior of suca employee to at once report such accident and the injury resulting therefrom to the head of his Bu- reau or indej>endent office, and his report shall be immediately com- municated through regular official channels to the Secretary of Com- merce and Labor. Such report shall state, lirst, the time, cause, and nature of the accident and injury and the probable duration of tlie injury resulting therefrom; second, whether the accident arose out of or in the course of the injured person's employment; tliird, whether the accident was due to negligence or misconduct on the part of the employee injured; fuiirth, any other matters required by STich rules and regulations as the Secretary of Commerce and APPENDIX A. 40;: Labor may prescribe. The head of each Department or independent office shall have power, however, to cliarge a special oflicial with the duty of malcing suoh reports. Sec. 4. That in the case of any accident which shall result in death, the persons entitled to com- pensation under this Act or their legal representatives shall, within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for comj^ensation under the provisions of this Act. This shall be accom- panied by the certificate of the at- tending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily account- ed for. In the case of in- capacity for work lasting more than fifteen days, the injured party desiring to take the benefit of this Act shall, within a reasonable pe- riod after the expiration of such time, file with his official superio'-, to be forwarded through regular official channels to the Secretary of Commerce and Labor, an affidavit setting forth the grounds of his claim for compensation, to be ac- companied by a certificate of the attending physician as to the cause and nature of the injury and prob- able duration of the incapacity, or the nonproduction of the certifi- cate shall be satisfactorily ac- counted for. If the Secretary of Commerce and Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal repre- sentatives, or from such addition il investigation as the Secretary of Commerce and Labor may direct, that a claim for compensation is established under this Act, tlic compensation to be paid shall bo determined as provided under thi3 Act and approved for payment by the Secretarj"^ of Commerce and Labor. Sec. 5. That the employee shall, wlienever and as often as required by the iSccretary of Commerce and Labor, at 'e^st once in six months, submit to medical examination, to be provided and paid for under the direction of the Secretary, and if such employee refuses to submit to or obstructs such examination his or her right to compensation shall be lost for the period cov- ered by the continuance of such refusal or obstruction. Sec. 6. That payments under this Act are only to be made to the beneficiaries or their legal repre- sentatives other than assignees, and shall not be subject to the claims of creditors. Sec. 7. That the United States shall not exempt itself from lia- bility under this Act by any con- tract, agreement, rule, or regula- tion, and any such contract, agree- ment, rule, or regulation shall be p)-o tan to void. Sec. 8. That all Acts or parts of Acts in confiict herewith or pro- viding a different scale of compen- sation or otherwise regulating its payment are hereby repealed. Approved, May 30, 1908. 404 FEDERAL EMPLOYERS* LLA.B1LITT ACT. GRANTING TO CERTAIN EMPLOYEES OF THE UNITED STATES THE RIGHT TO RECEIVE FROM IT COMPENSATION FOR INJURIES SUSTAINED IN THE COURSE OF THEIR EMPLOY- MENT. ilAT 12, 1908. — Committed to the Committee of the Whole House on the state of the Union and ordered to be printed. Mr. Alexander, of New York, from the Committee on the Judiciary, submitted the following REPORT. [To accompany H. R. 21844.] The Committee on the Judiciary have had under consideration the bill (H. R. 21844), granting to certain employees of the United States the right to receive from jt compensation for injuries sustained in the course of their employment, and recommend that the same do pass. The purpose of this bill is to compensate Government employees engaged in hazardous occupations. Such employment is practically con- fined to arsenals, navy-yards, man- ufacturing establishments ( such as armories, clothing depots, ship- yards, proving grounds, powder factories, etc. ) , to construction of river and harbor Avork, and to vrork upon the Isthmian Canal. The bill provides that the wages of such an employee who is injured in tlie course of such employment, AAith- out contributory negligence or mis- conduct, shall be continued for one year unless he is sooner able to resume work. If such an one is killed, or subsequently dies during the year, an amount equal to a 3-ear'8 wages or the remainder thereof is paid in equal portions to his widow, children under six- teen years of age, and dependent mother, or to the survivor or sur- vivors. All payments are made under the direction of the Secretary of Com- merce and Labor, who is authorized to pass upon questions of negli- gence and misconduct and to make such rules and regulations as may be necessary to safeguard the in- terests of the Government and of the beneficiaries. From his deci- sion no appeal is allowed. Sections 3 to 9 (inclusive) make ample pro- vision for the protection of the Government, requiring notice of ac- cident, investigations, medical ex- aminations from time to time, etc. Section 10 repeals all acts in con- flict. The principle of this measure is not new to our Government. For five years railway postal clerks have been thus compensated, and since ilay 4, 1882, members of the Life-Saving Service have en- joyed similar benefits. In case of injury a postal clerk is paid hi-j v/ages for one year, unless sooner able to resume work, ranging from $800 to $1,GOO. If he is killed or dies witiiin one year, his family receives a lum.p sum of $1,000. A surfman in the Life-Saving Service, if injured, may receive his wages for two years, unless sooner able to resume work, ranging from $G50 to $1,560 for the two j'ears. If killed, his fam.ily receives a like amount. L'nder the provisions of this bill a Government artisan or laborer, if injured, receives one APPENDIX A. 4ori year's wages, unless sooner able to resume work, ranging from $300 (boys) to $1,GOO (foreman and ex- perts), being an average of about $800. If Icilled, his family receives a like amount. There is insufficient data as to the number and character of ac- cidents occurring to Government employees upon which to base an accurate estimate of the cost under tliis bill. In the railway mail serv- ice there are 14,347 postal clerks, and last year it cost the Govern- ment $98,113.95 because of acci- dents. The Life-Saving Service employs 1,898 surfmen, and the Government during the last year paid for accidents and deaths $41,270.51. This amount also in- cludes SLims paid for sickness con- tracted in tlie service. There are approximately 6,600 artisans and laborers employed in arsenals, armories, ajid other man- ufacturing establishments of the War Department, and during the past ten yearg eight were killed and forty-one more or less se- riously injured. The average ab- sence from work because of these injuries was about two and one- half months. Under this bill the Government would have paid during the ten years a total of about $20,000, or an average of $2,000 a year. It ought to be added that tne feAvness of the acci- dents arising in the workshops of the War Department is largely due to the excellent condition of the machinery and the discipline exer- cised by the ofhcers in charge. The thirty-one nayj'-yards, nava! stations, training stations, and naval magazines under the Navy Department employ approximately 25,000 men, but no statistics are available showing the number of accidents. Under the Isthmian Ca- nal Commission approximately 11,000 men are engaged in hazard- ous occupations, their wages rang- ing from $500 (unskilled*laborers» to $2,200 ( locomotive engineers ) . During the calendar year 1907 there were 142 accidents resultiiig in death and approximately 1,300 treated in the hospitals. As no statistics are available .showing tli-i wages received by those killed or injured, no estimate can be made of the probable cost of compensa- tion under this bill. Tlie numl)er of injured in proportion to tliose emploj'ed is very large, although it is likely that many accidents were slight and many due to the con- tributory negligence of the em- ployees. The Government in its river and harbor work employs approxi- mately 12,800 artisans and lalxjr- ers, their wages ranging from $400 to $3,600, with an approximate average of $1,200. The perfect machinery and the discipline exer- cised over the employees have re- sulted in a very few accidents, sev- enty-five approximately having occurred since and including the year 1894. Of those injured only tw^o were killed and one died. The bill covers approximately 55,400 employees out of a total of 337,751 connected with the classi- fied and unclassified civil service of the United States. If to this amount be added the postal clerks and members of the Life-Saving Service, the aggregate who may be cared for, if injured, will be in- creased to 71,600. This measure is not as compre- hensive or as liberal as many de- sire. Bills have been introduced extending relief to all employees of the Government. Some of these bills exclude negligence; others al- low actions to be brought in Fed- eral courts, with and without limitation as to the amount recov- erable; others, following the rule of compensation adopted in this 406 FEDERAL EMPLOYERS LIABILITY ACT. measure, double and treble the amount to be paid in case of in- jury or death. Nevertheless, it has seemed wise to the committee to confine compensation so far as pos- sible to hazardous occupations, and to adhere not only to the system already adopted by the Treasury and Post-Office Depart- ments, but to dispense relatively about the same amount of relief. Tills plan, uniforml}' advocated by such employees of the Govern- nient as appeared before the com- mittee, seemg to be much more satisfactory because it gives food to the family at a time when tlie employee cannot earn wag-es. In- deed, a strong feeling was evi- denced at the hearings that some less expensive system of compen- sating accidents should be adopted than the lawsuit, which involves delay, produces uncertainty, with- liolds money when most needed, and works other hardships. What the injured employee seems to desire is to have his family supported while he is unable to earn wages, and he seems to prefer to taJower, but its exercise by Congress, which may be incompatible with the exorcise of the same power by the States, and that the States may legislate in the APPENDIX B. 42.J absence of congressional legislation.'' In Pennsylvania r. Wheeling, etc., Co. (18 How., 431), where a state law authorized tiie building of a bridge over a navigable water, is was declared that even in the matter of a bridge, "if Congress cliooses to act, its action necessarily precludes the action of the State." In United States v. Colorado & N. W. R. Co. (157 Fed. Rep., 321, 330), Sanborn, J., remarks: "The Constitution reserved to the nation the unlimited power to regu late interstate and foreign commerce, and if that power can not bi e.^ectually exercised without aliecting intrastate of)mmerce, then Con- gress may undoubtedly in that sense regulate intrastate commerce so far as necessary in order to regulate interstate commerce fully and effectually. * * * That power is not subordinate, but is paramount to all the powers of the States. If its independent and lawful exerdUe of this congressional power and the attempted exercise by a State of any of its powers impinge or conflict, the former must prevail and the latter must give way." (See also Gibbons v. Ogden, & Wheat., 1, 209, 210.) It will be observed from these utterances that it is nr)t a mere ques- tion of conflicting laws in the two jurisdictions, so that tlie law of a State will be valid so far as not antagonistic to a federal law. The question is more properly one of jurisdiction over the subject, the hold- ing being that within the second class of subjects above outlined silence of Congress is deemed a relegation to the States of such jurisdiction and authority, but action by Congress upon the particular subject is deemed an assertion of the federal power, a declaration of the policy that the subject shall be under federal and not state regulation, an J that, therefore, the power shall no longer rest in the State to exercise that authority which by the Constitution of the United States was sur- rendered to the Federal Government when and if Congress deemed its exercise advisable. In a recent decision of the court of civil appeals, State of Texas, the court unanimously stated this doctrine as fol- lows: It is well settled that the power of Congress to regulate interstate commerce under the provisions of the Constitution before mentioned is plenary and includes the power to prescribe the qualifications, duties, and liabilities of employees of railway companies engaged in intersitatvj commerce, and any legislation by CongTess on such subject supersedes any state law upon the same subject. ( Railway Co. t\ Alabama, 128 U. S., 99; Howard v. Railway Co., 207 U. S., 463.) The constitutional right of Congress to legislate upon this subject having been exercised by that body, the right of the State to invade this field of legislation ceased, or, at all events, no act of a state legis- lature in conflict with the act of Congress upon the same subject can be held valid. The supreme courts of Missouri and Wisconsin in passing upon the validity of statutes of said States similar to the act we are considering, hold such statutes void upon the ground of conflict with the act of Congress before mentioned. (State v. Mo. Pac. Ry. Co., Ill S. W., 500; State v. C. M. & St. P. Ry. Co., 117 N. W., 686.) 42-4 FEDERAL EMPLOYERS' LIABILITY ACT. Judge Cooley, in his work on Constitutional Limitations, seventh edition, 856, said : It is not doubted that Congress has the power to go beyond the general regulation of commerce Avliich it is accustomed to estahlish, and to descend to the most minute directions, if it sliall be deemed advisable; and that to \vliatever extent ground shall ha covered by these directions, the exercise of state power is excluded. It is therefore undoubtedly the law that congressional action upon tlie liability of carriers engaged in interstate commerce, for injuries to their employees, supersedes all state legislation upon the same subject, and renders them, as long as the Federal law remains in operation, of no avail as providing a legal remedy. Many of the States provide by statute for the survival of any action which the deceased may have had for the injury to his estate, and for any expenditures during his lifetime resulting from the injury. In the phraseology of the existing Employers' Liability Act — that is, the Act of April 22, 1908 — the expression used is, as to the question now under consideration: Shall be liable in damages * * * in case of the death of such empiojee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and if none, then of such employee's parents; and if none, then of the next of kin dependent upon siich employee, for such injury or death result- ing in whole or in part from the negligence of any of its officers, agents, employees, * * *." In the case of Fulgam v. Midland Valley R. R. Company, hereinbefore cited, the court said : In the opinion of the court, right of action given to the injured employee by the act of April 22, 1!)08, does not survive to his persona) representative in the event of his death, but, at common law, perishes with the injured person. In tlie case of Walsh, admx., v. New York, New Haven and Hartford Railroad Company, Circuit Judge Lowell, who delivered the opinion of the court, said in a case arising under the Employers' Liability Act of April 22, 1908, after quoting the case of Fulgam v. Midland Valley R. R. Co, (167 Fed., 660) : APPENDIX B. 425 The defendant has further demurred to counts one and four, contend- ing that the eniploy(>e's cause of action to recover for his conscious suffering did m)t survive to his administratrix, although the existence of some of the .statutory relatives v/as alleged. As the cause of action is given by a federal statute, tiiis court can not have recourse to a state statute in order to determine whether the cause of action survives or not. (Schreiber v. Sharpless, 110 U. S., 70, 80; B. & 0. K. R. v. Joy 173 U. S., 220, 230; U. S. v. DeGoer, 38 Fed., 80; U. S. v. Riley, lOt Fed., 275.) Revised Statutes, sedition 955, provides that "When either of the parties, whether plaintilF or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judg- ment." This section does not itself provide what causes of action shall survive, but in the absence of other controlling statute leaves the matter to the common law. In the case at bar, therefore, the state statutes are ina]>plicable. There is no general federal statute, and the particular statute in question, tlie act of 1008, says nothing about survival. Thus remitted to the common law, at which survival is out of the question, we must here hold that the cause of action did not survive and so that counts one and four are demurrable. ( Fulgam v. Midland Valley Co., 187 Fed., 060.) The court is justified in saying that this result has been reached with reluctance. The maxim "Actio personalis moritur cum persona" has not always commended itself. (Pollock on Torts, Webb's ed., p. 71.) The survival of the cause of action in this case is allowed by the statutes of many States. That one who has suffered in body and in purse by the fault of another, and so lias a cause of action against the wrongdoer, should, as to his own e.-^ite, be deprived of this remedy by the delays of tlie law, or without such delay, by his death, before or after action brought, whether connected or unconnected with his first injury, seems to me, as to Sir Frederick Pollock, a barbarous rule. The intent or the oversight of the legisilature has established the rule in this case. The language of the statute should be made clear so that the uncertainty and obscurity suggested by Judge Lowell would be removed. So important a statute should be made so certain in its terms that the intent of Congress may be made manifest and clear. It certainly should be as broad, as comprehensive, and as inclusive in its terms as any of the similar remedial statutes existing in any of the States, which are suspended in their operation by force of the Federal legislation upon the subject. XoTE. — Tlie remainder of this report is incorporated in that of the Senate's following. 426 FEDERAL EMPLOYERS' LIABILITY ACT. SENATE REPORT ON AMEND- MENTS OF 1910. AMENDING EMPLOYERS' LIABILITY ACT. March 22, 1910. — Ordered to be printed. ]VIr. Borah, from the Committee on the Judiciary, submitted the following REPORT. [To accompany H. R. 17263.] The Committee on the Judiciary, having under considera- tion House bill 17263, reports as follows: It is of importance at the outset that Congress give care- ful and serious consideration to remedying any defects in the practical operation of the Employers' Liability Law from time to time as such defects are developed by proceedings in court. This serious attention seems demanded because the good faith of Congress in passing the original act has been made the subject of attack in a publication which has been given wide circulation among railroad counsel of the country. At page 83 of this publication entitled, "Uncon- stitutionality of the Federal Employers' Liability Act," pub- lished by the Price, Lee & Adkins Company, in the course of an argument of ]\[r. EdAvard D. Robbins, general counsel of the New York, New Haven and Hartford Railroad Com- pany, in two cases, ]\Iondou v. New York, New Haven and Hartford Railroad Company and Hoxie v. New York, New Haven and Hartford Railroad Company (73 Atl. Rep., 754), appears the following: Does any member of this court believe that this statute would ev-^r have Ijeen passed except on tiie eve of a presidential election under the influence of the great railway unions of this cse last cases serve to show that, until Congress has acted with reference to the regulation of interstate conmu'i-ce. state statutes regulating the relations of master and servant and incidentally affecting interstate commerce, but not regulating or obstructing it, may be given effect; but when Congress has acted ui>oii a given subject state legislation must yield. APPENDIX B. 445 In Gulf, Colorado, etc., Railroad Co. v. Hefley (158 U. S., 99; 19 Sup. Ct., 804; 39 L. Ed., 910) the court said: "When a state statute and a federal statute operate upon the same subject-matter, and pre- scribe different rules concerning it, the state statute must give way." When Congress acted upon the subject of the regulation of the liability of interstate carriers for injuries to their serv- ants engaged in interstate commerce, "the State was thereby precluded from enacting any law of that sort which would have that effect, for the field of policy and legislation was thus assumed by Congress and withdrawn from state com- petency." (Wisconsin v. C. 31. & St. P. Ry. Co., 117 N. W., G86.) In the course of his opinion in the case above cited. Justice Dodge, delivering the unanimous opinion of the supreme court of Wisconsin, very clearly stated this doctrine and the au- thority upon which it was based, as follows : Within the field of authorized congressional action the federal power must, in the nature of things, be ssupreme in all parts of the United States. "This Constitution, and the laws of the United States which shall be made in pursuance thereof *' * * sliall be the suprema law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary not- withstanding." (Art. VI, par. 2, Const. U. S. ) In Cooley v. Board of Wardens (12 How., 299, 318), it was said of this class of legislation: "It is not the mere existence of such, power, but its exercise by Con- gress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of congressional legislation." In Pennsylvania v. Wheeling, etc., Co. ( 18 How., 431), where a state law authorized the building of a bridge over a navigable water^ it was declared that even in the matter of a bridge "if Congress chooses to act, its action necessarily precludes the action of the State." In United States v. Colorado & N. W. R. (157 Fed. Rep., 321, 330), Sanborn, J., remarks: "The Constitution reserved to the nation the unlimited power to regulate interstate and foreign commerce, and if that power can not be effectually exercised without affecting intrastate commerce, thei Congress may undoubtedly in that sense regulate intrastate commerce so far as necessary in order to regulate interstate commerce fully and effectually. * * * That power is not subordinate but is paramount to all the powers of the States. If its independent and la\\'ful exercise of this congi-essional power and the attempted exercise by a. State of any of its powers imjiinge or contlict, the former must prcriail and the latter must give wav." (See also Gibbons v. Ogden, 9 \Mieat., 1 209 2ilO.) 446 FEDERAL EMI'LOYERS' LIABILITY ACT. It \W11 be observed from these utterances that it is not a mere question of conllicting laws in the two jurisdictions, so that the law of a State will hv. valid so far as not antagonistic to a federal law. The question is more properly one of jurisdiction over the subject, the holding being that within the second class of subjects above outlined silence of Congress is deemed a relegation to the States of such juris- diction and authority, but action by Congress upon the particular subject is deemetl an assertion of the federal power, a declaration of the ix>licy that the subject shall be under federal and not state regula- tioii, and that, therefore, the power shall no longer rest in the Stato to exorcise that authority which by the Constitution of tlie United States was surrendered to the Federal Government when and if Congres.? deemed its exercise advisable. In a recent decision of the court of civil appeals, State of Texas, the court unanimously stated this doctrine as follows : It is well settled that the power of Congress to regulate interstate commerce under the provisions of the Constitution before mentioned ia plenary and includes the power to prescribe the qualifications, duties, and liabilities of employees of railway companies engaged in interstate commerce, and any legislation by Congress on such subject supersedes anv stat-e law upi^n tlie same subject. ( Railway Co. v.. Alabama, 128 U.'S., 99; Howard v. Railway Co., 207 U. S., 463.) The constitutional right of Congre.*s to legislate upon this subject having been exercised by that body, the right of the State to invade this field of legislation ceased, or, at all events, no act of a state legis- lature in conflict with the act of Congress upon the same subject can be held valid. The supreme courts of Missouri and Wisconsin, in pass- ing upon tlie validity of statutes of said States similar to the act we are considering, hold such statutes void upon the ground of conflict ■with the act of 'Congress before mentioned. { State v i\fo. Pac. Rv. Co., Ill S. W., 500; State v. C. M. & St. P. Ry. Co., 117 N. W., 086".) Judge Cooley, in his work on Constitutional Limitations, seventh edition, vS56, said: It is not doubted that Congress has the power to go beyond the general regulation of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and that to whatever extent gnjund shall be covered by these directions, the exercise of state iwwer is excluded. It is therefore undoubtedly the law that congressional ac- tion upon the liability of carriers engaged in interstate com- merce, for injuries to their employees, supersedes all state legislation upon the same subject, and renders them, as long as the Federal law remains in operation, of no avail as pro- viding a legal remedy. Many of the States provide by statute for the survival of any action which the deceased may have had for the injury APPENDIX B. 447 to his estate, and for any expenditures during his lifetime resulting from the injury. In the phraseology of the existing Employers' Liability Act — that is, the Act of April 22, 1908 — the expression used is, as to the question now under consideration : Shall be liable in damages * * * in case of the death of soich employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of its officers, agents, employees, * * *." In the case of Fulgam v. Midland Valley B. R. Company, hereinbefore cited, the court said : In the opinion of the court, right of action given to the injured employee by the act of April 22, 1908, does not survive to his personal representative in the event of his death, but, at common law, perishes with the injured person. In the case of Walsh, adnix., v. New York, New Haven and Hartford Railroad Company, Circuit Judge Lowell, who de- livered the opinion of the court, said in a case arising under the Employers' Liability Act of April 22, 1908, after quoting the case of Fulgam v. Midland Valley R. R. Co. (167 Fed., 660) : The defendant has further demurred to counts one and four, con- tending that the emploj'ee's cause of action to recover for his conscious suffering did not survive to his administratrix, although the existence of some of the statutory relatives was alleged. As the cause of action is given by a federal statute, this court can not have recourse to a .state statute in order to determine whether the cause of action survives or not. (Schreiber v. Sharpless, 110 U. S., 76, 80: B. & 0. R. R. v. Joy, 173 U. S., 226, 230; U. S. v DeGoer, 38 Fed., 80; U. S. v. Riley, 104 Fed., 275.) Revised Statutes, section 955, provides that "When either of the parties, whether plaintiff or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judignient." This section does not itself provide what causes of action siiall survive, but in the absence of other controlling statute leaves the matter to the common law. In the case at bar, therefore, the state statutes are inapplicable. There is no general federal statute, and the particular statute in question, the act of 1908, says nothing about survival. Thus remitted to the common law, at which survival is out of the question, we must here hold that the cause of action did not survive «,nd so that counts one and four are demurrable. (Fulgam v. Midland 448 FEDER.VL employers' LIABILITY ACT, Valley Co., 167 Fed., GGO.) The court is justified in saying that this result has been reached with reluctance. The maxim "Actio personalis moritur cum persona" has not always commended itself. ( Pollock on Torts, Webb's ed., p. 71.) The survival of the cause of action in this case is allowed by the statutes of many States. That one who ha? suffered in body and in purse by the fault of another, and so has a cause of actif)n against the wrongdoer, should, as to his own estate, be deprived of this remedy by the delays of the law, or without such delay, by his death, before or after action brought, whether connected or unconnected with his first injury, seems to me, as to Sir Fredcricit Pollock, a barbarous rule. The intent or the oversight of the legislature has established the rule in this case. The language of the statute should be made clear so that the uncertainty and obscurity suggested by Judge Lowell would be removed. So important a statute should be made so certain in its terms that the intent of Congress may be made manifest and clear. It certainly should be as broad, as comprehensive, and as inclusive in its terms as any of the similar remedial statutes existing in any of the States, which are suspended in their operation by force of the Federal legislation upon the subject. APPENDIX C. ENGLISH EMPLOYERS' LIABILITY ACT. The English Employers' Liability Act of 1880^ provides: ^' Where * * * personal injury is caused to a work- man (1) By reason of any defect in the condition of the ways, work, machinery or plant connected with or used in the business of the employer; or (2) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the ex- ercise of such superintendence; or (3) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having to conform; or (4) By rea- son of the act or omission of any person in the service of the employer done or made in obedience to the rules or by- laws of the employer or in obedience to particular instruc- tions given by any person delegated with the authority of the employer in that behalf; or (5) By reason of the negli- gence of any person in the service of the employer who has the charge or control of any signal, points, locomotive en- gine, or train upon a railway, the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work." "A workman shall not be entitled under this act to any right 1 43 and 44 Vict. 42. 449i 450 ENGLISH employers' LLiBILITY ACT. of compensation or remedy against the employer in any of the following eases ; that is to say : ( 1 ) Under sub- section one of Section one, unless the defect therein men- tioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in j)r()i')er condition; (2) Under sub-section four of Section one, unless the injury resulted from some impro- priety or defect in the rules, by-laws, or instructions therein mentioned ; provided, that where a rule or by-law has been approved or has been accepted as a proper rule or by-law by one of Her ]\rajesty's Principal Secretaries of State, or by the Board of Trade, or any other department of the government, under or by virtue of any act of Parliament, it shall not be deemed for the purposes of this act to be an improper or defective rule or by-law; (3) In any ease where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the em- ployer, unless he was aware that the employer or such superior already knew of the said defect or negligence." ENGLISH ACT CONSTRUED. Tn Roberts' Duty and Liability of Employers it is said of this act: "It does not altogether abolish the defense of common employment.- It does not make the employer re- sponsible for the acts of persons AA^ho either are not his servants, or are not acting within the scope of their employ- ment as such. It does not make him responsible for acts or omissions which do not constitute a breach of duty.^ It Titin;: (',\\>\)s v. Ciroat Wostorn 1\.. p. IIGI; Hamilton v. Hyde R. Co. 12 Q. B. Div. 211; Robins Park Foundry 22 Sc. L. R. 709; V. Cnl.it. 14() L. T. 535. Walsh v. wiiitely, 21 Q. B Div, * Citing Grant v. DrysdaU-, 10 371. APPENDIX C. 451 does not create a new cause of action where none was in existence previously,* but only adds a remedy against a per- son other than the wrongdoer, or, in other words, directs an old cause of action against a new defendant. It does not give an absolute right of action, but merely removes one defense,^ placing the workman even when all the conditions have been satisfied, only in the position of one of the public.® From which it follows that it does not make the employer responsible where the workman has been guilty of contribu- tory negligence ;" or has, within the meaning of the maxim, volenti non fit injuria, voluntarily undertaken the conse- quences of that which but for his acceptance of the risk would have constituted a breach of duty on the part of the employer.** It does not impose any liability on the employer in favor of either the representatives or the rela- tives of an injured workman, unless the workman's death results from the injury. And lastly, it does not, as we have seen, deprive the workman of any right of action against the employer which is given him by the common law. "^ * Citing Thomas v. Quarter- * Citing Yarmouh v. France, 19 Q. B. Div., 659. ' Roberts Employers' Liability Act, p. 248. main, 18 Q. B. Div., pp. 692, 693 Morrison v. Baird, 10 R., p. 277 Robertson v. Russell, 12 R., p. 638 ° Citing Yarmouth v. France, 19 Q. B. Div., p. 659 ; Morrison v. * Note. — similar statutes have Baird, 10 R., pp. 277, 278 (S. C.) been held constitutional. Holden v. « Citing Thomas v. Quartermain, Hardy, 169 U. S. 366; 18 Sup. Ct. 18 Q. B. Div., p. 693; Stuart v. Rep. 383. But see Ritchie v. Peo- Evans. 31 W. R. 706. pie, 155 111. 98; 40 N. E. Rep. ^ Citing Thomas v. Quartermain, 454 ; 29 L. R. A. 79 ; and Low v. at p. 698. Reeg Printing Co. 41 Neb. 127; 59 Pac. Rep. 362; 24 L. R. A. 702. APPENDIX D. SAFETY APPLIANCE ACTS. An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with auto- matic couplers and continuous brakes and their loco- motives with driving-wheel brakes, and for other purposes. Sec. 1. Be it enacted hy the Senate and House of Repre- sentatives of the United States of America in Congress as- sembled, That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by rail- road to use on its line any locomotive-engine in moving inter- state traffic not equipped with a power driving-wheel brake and appliances for operating the train brake system or to run any train in such traffic after said date that has not a suffi- cient number of oars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakeman to use the common hand brake for that purjiose. Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men .going between the ends of the ears. NoTi:. — A comma sliould be inserted after the word "uncoupled" in Section 2. Johnson v. Southern Pacific Co., 196 U. S., 1; 25 Sujk Ct , 158; 49 Ij. Ed., 303, reversinjr 117 Fed., 402; 54 C. C. A., 508; Cliicago, M. & St. P. Ky. Co. V. Voelker, 129 Fed., 522; see United States v. Erie K. Co., IGO Fed., 352. 452 APPENDIX D. 453 Sec. 3. That when any person, firm, company, or cor- poration engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to com- ply with the provisions of Section one of this act, it may lawfully refuse to receive from connecting lines of road or shipper any cars not equipped sufficiently, in accordance with the first section of this act, with such power or train brakes as will w^ork and readily interchange with the brakes in use on its own cars, as required bj^ this act. Sec. 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the In- terstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. Sec. 5. That within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of draw bars for freight cars measured per- pendicular from the level of the tops of the rails to the centers of the draw bars, for each of the several gauges of railroads in use in the United States, and shall fix a maxi- mum variation from such standard height to be allowed be- tween the draw bars of empty and loaded cars. Upon their determination being certified to the Interstate Commerce Commission, said Commission shall at once give notice of the standard fixed upon to all common carriers, owners, or lessees engaged in interstate commerce in the United States by such means as the Commission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so, before July first, eighteen hundred and ninety- four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars, either loaded or unloaded, shall be used in interstate 454 FEDER/UL, employers' SAFETY APPLIANCE ACT. traffic which do not comply with the standard above pro- vided for. Sec. 6. That any such common carrier using any loco- motive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the District Court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such dis- trict attorney to bring such suits upon duly verified informa- tion being lodged with him of such violation having occurred ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys in- formation of any such violations as may come to its knowl- edge. Provided, That nothing in this act contained shall apply to trains composed of four-wheeled cars or to trains composed of eight-wheel standard logging cars where the height of such car from top of rail to center of coupling does not exceed twenty-five inches, or to locomotives used in haul- ing such trains when such cars or locomotives are exclusively used for the transportation of logs. (As amended April 1, 1896, 29 U. S. Stat, at L., 85, eh. 87.) Sec. 7. That the Interstate Commerce Commission may from time to time ui)on full hearing and for good cause ex- tend the period within which any common carrier shall com- ply with the provisions of this act. Sec. 8. That any employe of any such carrier who may be injured by any locomotive, car, or train in use contrary to the provisions of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continu- ing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge. Approved, March 2, 1893, 27 U. S. Stat, at Large, 531, ch. 196. NoTi;. — ^As to jurisdiction of the Circuit Court of the District of Columbia, see United States v. lialtimore & K. Co., 2(J App. D. C, 851. APPENDIX D. 455 An act to amend an act entitled, ''An act to promote the safety of employes and travelers upon railroads by com- pelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continu- ous brakes and their locomotives with driving-wheel brakes, and for other purposes, ' ' approved IMarch second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six. (Public No. 133, approved March 2, 1903.) Sec. 1. Be it enacted hy the Senate and House of Rep- resentatives of the United State of America in Congress as- sembled, That the provisions and requirements of the Act entitled "An Act to promote the safety of employees and travelers upon railroads by compelling common carriers en- gaged in interstate commerce to equip their cars with auto- matic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes, ' ' approved March second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six, shall be held to apply to common carriers by railroads in the Territories and the District of Columbia and shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type, and the provisions and requirements hereof and of said Acts relating to train brakes,, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce, and in the Territories and the District of Columbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith, excepting those trains, cars, and locomotives exempted by the provisions of section six of said Act of March second, eighteen hundred and ninety-three, as amended by the Act of April first, eighteen hundred and ninety-six, or which are used upon street railways. Sec. 2. That whenever, as provided in said Act, any train. 456 FEDERAL EMPLOYERS' SAPETY APPLIANCE ACT. is operated with power or train bralves, not less than fifty per centum of the ears in such train shall have their brakes used and operated by the the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said Act the Interstate Commerce Commission may, from time to time, after full hearing, in- crease the minimum percentage of cars in any train required to be operated with power or train brakes which must have their brakes used and operated as aforesaid ; and failure to comply with any such requirement of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section. Sec. 3. That the provisions of this Act shall not take effect until September first, nineteen hundred and three. Nothing in this Act shall be held or construed to relieve any common carrier, the Interstate Commerce Commission, or any United States District attorney from any of the provi- sions, powers, duties, liabilities, or requirements of said Act of ]\Iarch second, eighteen hundred and ninety-three, as amended by the Act of April first, eighteen hundred and ninety-six ; and all of the provisions, powers, duties, require- ments and liabilities of said Act of ]\Iareh second, eighteen hundred and ninety-three, as amended by the Act of April first, eighteen hundred and ninety-six, shall, except as spe- cifically amended by this Act, apply to this Act. LADDERS, HAND BRAKES, HAND HOLDS. [Public No. 133.] [n. R. 5702.] An Act to supplemont "An Act in promote the safety of employeos and travelers upon railroads by compelling common carriers engaged in interstate commerce to e) inch l)olts with nuts outside (when possible) and riveted over, or with not less than one-half (i/o) inch rivets. Tiiree-eigliths (%) inch bolts may be used for wooden treads Avhich are gained into stiles. appendix d. 469 End-ladder Clearance, No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of ear and pass- ing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same abov:! end-sills, other than exceptions herein noted, shall extend beyond tlie outer face of buffer-block. Side-handholds. Number : One ( 1 ) over each ladder. One (1) right angle handhold may take the place of two (2) adjacent specified roof-handholds, provided the dimen- sions and locations coincide, and that an extra leg is securely fastened to car at point of angle. Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches. Minimum clearance, two (2), preferably two and one-half (21/2) inches. Location: On roof of car: One (1) parallel to treads of each ladder, not less than eight (8) nor more than fifteen (15) inches from edge of roof, except on refrigerator cars where ice hatches prevent, when location may be nearer edge of roof. Manner of Application : Roof-handholds shall be securely fastened with not less than one-half {Vo) iiich bolts with nuts outside (when possible) and riveted over, or with not less than one-half (i/o) inch rivets. Side-hand-holds. Number: Four (4). [Tread of side-ladder is a side-handhold.] Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. 470 FEDERAL EMPLOYERS' SAFETY APPLLANCE ACT. ^Minimum clear length, sixteen (16) inches, preferably twenty-four (2-1) inches. ^Minimum clearance, two (2), preferably two and one-half (21/2) inches. Location: Horizontal: One (1) near each end on each side of car. Side-handholds shall be not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, except as provided above, where tread of ladder is a handhold. Clearance of outer end of handhold shall be not more than eight (8) inches from end of car. Manner of Application : Side-handholds shall be securely fastened with not less than one-half (%) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (lA) iiich rivets. Horizontal End-handholds. Number: Eight (8) or more. [Four (4) on each end of car.] [Tread of end-ladder is an end-handhold.] Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. IMinimum clear length, sixteen (16) inches, preferably twenty-four (24) inches. A handhold fourteen (14) inches in length may be used where it is impossible to use one sixteen (16) inches in length. ]\Iinimum clearance, two (2), preferably two and one-half (21/2) inches. Location: One (1) near each side on eaeli end of car, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, except as provided above, when tread of end-ladder is an end-handhold. Clearance of outer end of handhold shall be not more than eight (8) inches from side of car. One (1) near each side of each end of car on face of end-sill or sheathing over end-sill, projecting outward or downward. APPENDIX D. 471 Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. One each end of ears with platform end-sills six (6) or more inches in width, measured from end-post or siding and ex- tending entirely across end of car, there shall be one addi- tional end-handhold not less than twenty-four (24) inches in length, located near center of car, not less than thirty (30) nor more than sixty (60) inches above platform end-sill. Manner of Application : Horizontal end-handholds shall be securely fastened wdth not less than one-half (i/^) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (i-o) inch rivets. Vertical End-handholds. Number: Two (2) on full-width platform end-sill cars, as heretofore described. Dimensions: Minimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, eighteen (18), preferably twenty- four (24) inches. Minimum clearance two (2), preferably two and one-half (21/2) inches. Location : One ( 1 ) on each end of car opposite ladder, not more than eight (8) inches from side of car; clearance of bottom end of handhold shall be not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler. Manner of Application : Vertical end-handholds shall be securely fastened with not less than one-half (i/4) inch bolts with nuts outside (when possible) and riveted over, or wdth not less than one-half (^A) inch rivets. Uncoupling-levers. Number: Two (2). Uncoupling-levers may be either single cv double, and of any efficient design. 472 FEDERAL EMPLOYERS' S.VFETY APPLIANCE ACT. Dimensions: Handles of uncoupling-levers, except those shown on Plate B or of similar designs, shall be not more than six (6) inches from sides of ear. Uncoupling-levers of design shown on Plate B and of similar designs shall conform to the following-prescribed limits : Handles shall be not more than twelve (12), preferably nine (9) inches from sides of cars. Center lift-arms shall be not less than seven (7) inches long. Center of eye at end of center lift-arm shall be not more than three and one-half (S^/o) inches beyond center of eye of uncoupling-pin of coupler when horn of coupler is against the buffer-block or end-sill. (See Plate B.) Ends of handles shall extend not less than four (4) inches below bottom of end-sill or shall be so constructed as to give a minimum clearance of two (2) inches around handle. Minimum drop of handles shall be twelve (12) inches; maxi- mum, fifteen (15) inches over all. (See Plate B.) Handles of uncoupling-levers of the "rocking" or "push- do^vn" type shall be not less than eighteen (18) inches from top of rail when lock-block has released knuckle, and a suitable stop shall be provided to prevent inside arm from flying up in case of breakage. Location: One (1) on each end of car. When single lever is used it shall be placed on left side of end of car. HOPPER CARS AND HIGH-SIDE GONDOLAS WITH FIXED ENDS. [Cars with sides more than thirty-six {36) inches above the floor are high-side cars.] Hand-brakes. Number: Same as specified for "Box and other house cars." Dimensions: Same as specified for "Box and other house cars." APPENDIX D, 473 Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of, and not more than twenty-two (22) inches from, center. Manner of Application : Same as specified for ' ' Box and other house cars." Brake-step. Same as specified for "Box and other house cars." SlI-L-STEPS. Same as specified for "Box and other house cars." Ladders. Number : Same as specified for ' ' Box and other house cars. ' ' Dimensions: Same as specified for "Box and other house cars," except that top-ladder tread shall be located not more than four (4) inches from top of car. Location: Same as specified for "Box and other house cars. ' ' Manner of Application : Same as specified for ' ' Box and other house cars." Side-handholds. Same as specified for "Box and other house cars." Horizontal End-handholds. Same as specified for "Box and other house ears." Vertical End-handholds. Same as specified for "Box and other house cars.'* Uncoupling-levers. Same as specified for "Box and other house cars." End-ladder Clearance. No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- 474 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. wheel, brake-step or uncoupling lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed witli coupler-horn against the buffer-lilock or end- sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. DROP-END HIGH-SIDE GONDOLA CARS. Hand-brakes. Number : Same as specified for ' ' Box and other house cars. *' Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. Manner of Application : Same as specified for ' ' Box and other house cars." Sill-steps. Same as specified for "Box and other house cars." Ladders. Number: Two (2). Dimensions: Same as specified for "Box and other house cars," except that top-ladder tread shall be located not more than four (4) inches from top of car. Location: One (1) on each side, not more than eight (8) inches from right end of car, measured from inside edge of ladder-stile or clearance of ladder-treads to corner of car. Manner of Application: Same as specified for "Box and other lious(5 cars." Side-handholds. Same as specified for "Box and other house cars." appendix d. 475 Horizontal End-handholds. Number: Four (4), Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location : One ( 1 ) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner op Application : Same as specified for ' ' Box and other house cars." ITncoupling-levers. Same as specified for "Box and other house cars." End-ladder CLEAR.ysrcE. No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel vdth end of car and pass- ing through the inside face of knuckle when closed wdth coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. FIXED-END LOW-SIDE GONDOLA AND LOW-SIDE HOPPER CARS. [Cars ivith sides thirty-six {36) inches or less above the floor are low-side cars.] Hand-brakes. Number: Same as specified for "Box and other house cars. ' ' Dimensions: Same as specified for "Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. 476 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. The brake-shaft shall be located on end of car, to the left of and not more than twenty-two (22) inches from center. Manner of Application : Same as specified for ' ' Box and other house cars." Brake-step. Same as specified for "Box and other house cars." Sill-steps. Same as specified for "Box and other house cars." Side-handholds. Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) near each end on each side of car, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, if car construction will permit, but handhold shall not project above top of side. Clearance of outer end of handhold shall be not more than eight (8) inches from end of car. Manner of Application : Same as specified for ' ' Box and other house cars." Horizontal End-handholds. Number: Same as specified for "Box and other house cars. ' ' Dimensions: Same as specified for "Box and other house cars. ' ' Location: One (1) near each side on each end of car not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, if car construction will permit. Clearance of outer end of handhold shall be not more than eight (8) inches from side of car. One (1) near each side of each end of car on face of end-sill, projecting outward or downward. Clearance of outer end of APPENDIX D. 477 handhold shall be not more than sixteen (16) inches from side of car. Manner of Application : Same as specified for ' * Box and other house cars." Uncoupling-le\'ers. Same as specified for "Box and other house cars." End-ladder Clearance. No part of car above end-sills within thirty (30) inches from side of ear, except buffer-block, brake-shaft, brake-step, brake-wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. DROP-END LOW-SIDE GONDOLA CARS. Hand-brakes. Number: Same as specified for "Box and other house cars." Dimensions: Same as specified for "Box and other house cars." Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. Manner of Application: Same as specified for "Box and other house cars," provided that top brake-shaft support may be omitted. Sill-steps. Same as specified for "Box and other house cars." 478 FEDERAL EMPLOYERS SAFETY APPLL4.NCE ACT. SlDE-HANDIIOLDS. Number : Same as specified for ' ' Box and other house cars." Dimensions: Same as specified for "Box and other house cars. ' ' Location : Horizontal : One ( 1 ) near each end on each side of car, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, if car construction will permit, but handhold shall not project above top of side. Clearance of outer end of handhold shall be not more than eight (8) inches from end of car. I\Ianner of Appijcation : Same as specified for ' ' Box and other house cars." End-handholds. Number: Four (4). Dimensions: Same as specified for "Box and other house cars." Location : Horizontal : One ( 1 ) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. IManner of Application : Same as specified for * ' Box and other house cars." Uncoupling-levers. Same as specified for "Box and other house cars." End-ladder Clearance. No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake-wheel, or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane i)arallel Avitli end of car and passing through the inside face of knuckle when closed with coupler- horn against the buffer-ljloek or end-sill, and no other part of end of car or fixtures on same above end-sills, otlier than exceptions herein noted, shall extend beyond the outer face of buffer-block. APPENDIX D. 479 FLAT CARS. [Cars tvith sides twelve {12) inches or less above the floor may be equipped the same as flat cars.] Hand-brakes. Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on the end of car to the left of center, or on side of car not more than thirty-six (36) inches from right-hand end thereof. Manner of Application : Same as specified for ' ' Box and other house cars." Sill-steps. Same as specified for "Box and other house cars." Side-handholds. Number: Same as specified for "Box and other house cars. ' ' Dimensions: Same as specified for ''Box and other house cars." Location: Horizontal: One (1) on face of each side-sill near each end. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. Manner of Application : Same as specified for ' ' Box and other house cars." End Handholds. Number: Four (4). Dimensions: Same as specified for "Box and other house cars. ' ' Location: Horizontal: One (1) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. 480 FEDERAL EMPLOYERS' SAFETY APPLL4NCE ACT. ^Manner of Application : Same as specified for ' ' Box and other house ears." Uncoupling-levers. Same as specified for "Box and other house cars." TANK CARS WITH SIDE-PLATFORMS. Hand- BRAKES. Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. Manner of Application: Same as specified for "Box and other house cars." Sill Steps. Same as specified for "Box and other house cars." Side-handholds. Number: Four (4) or more. Dimensions: Same as specified for "Box and other house cars." Location: Horizontal: One (1) on face of each side-sill near each end. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. If side safety-railings are attached to tank or tank bands, four (4) additional vertical handholds shall be applied, one (1) as nearly as possible over each sill-step and securely fastened to tank or tank band. Manner of Application: Same as specified for "Box and other house cars." APPENDIX D. 481 EnD-H AJSTDIIOLDS. Number: Four (4). Dimensions: Same as specified for "Box and other house cars." Location : Horizontal : One ( 1 ) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner of Application : Same as specified for ' ' Box and other house cars." Tank-head Handholds. Number: Two (2). [Not required if safety -railing runs around ends of tank.] Dimensions: j\Iinimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clearance two (2), preferably two and one-half (2i/i>) inches. Clear length of handholds shall extend to within six (6) inches of outer diameter of tank at point of application. Location: Horizontal: One (1) across each head of tank not less than thirty (30) nor more than sixty (60) inches above platform. Manner of Application: Tank-head handholds shall be securely fastened. S.apety-railings. Number: One (1) continuous safety-railing running around sides and ends of tank, securely fastened to tank or tank bands at ends and sides of tank; or two (2) running full length of tank at sides of car supported by posts. Dimensions: Not less than three-fourths (%) of an inch, iron. Location : Running full length of tank either at side sup- ported by posts or securely fastened to tank or tank bands, not less than thirty (30) nor more than sixty (60) inches above platform. Manner of Application : Safety-railings shall be securely fastened to tank body, tank bands or posts. 482 federal employers' safety appllvnce act. Uncoupling-levers. Same as specified for "Box and other house cars." End-Lx\X)DER Clearance. No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft brackets, brake-wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end- sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block, TANK CARS WITHOUT STDE-STLLS AND TANK CARS WITH SHORT SIDE-SILLS AND END-PLATFORMS. Hand-brakes. Number: Same as specified for "Box and other house cars." Dimensions: Same as specified for "Box and other house cars. ' ' Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. IVIanner of Application: Same as specified for "Box and other house cars." Running-boards. Number: One (1) continuous running-board around sides and ends; or two (2) running full length of tank, one (1) on each side. Dimensions: ^Minimum widtli on sides, ten (10) inches. ]\linimum width on ends, six (6) inches. APPENDIX D, 483 Location : Continuous around sides and ends of ears. On tank ears having end platforms extending to bolsters, run- ning-boards shall extend from center to center of bolsters, one (1) on each side. Manner of Application : If side running-boards are applied below center of tank, outside edge of running-boards shall extend not less than seven (7) inches beyond bulge of tank. The running-boards at ends of car shall be not less than six (6) inches from a point vertically above the inside face of knuckle when closed with coupler-horn against the buffer- block, end-sill or back-stop. Running-boards shall be securely fastened to tank or tank handhold. Sill-steps. Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: One (1) near each end on each side under side- handhold. Outside edge of tread of step shall be not more than four (4) inches inside of face of side of car, preferably flush with side of car. Tread shall be not more than twenty-four (24), preferably not more than twenty-two (22) inches above the top of rail. Manner op Application: Same as specified for "Box and other house cars." Ladders. [7/ running-hoards are so located as to make ladders necessary.] Number: Two (2) on cars with continuous running- boards. Four (4) on cars with side running-boards. Dimensions: Minimum clear length of tread, ten (10) inches. 484 FEDERAL EMPLOYERS SAPETY APPLIANCE ACT. Maximum spacing of treads, nineteen (19) inches. Hard-wood treads, minimum dimensions, one and one-half (IVo) by two (2) inches. "Wrought iron or steel treads, minimum diameter, five- eighths (%) of an inch. IMinimum clearance, two (2), preferably two and one-half (2i/o) inches. Location : On cars ^vith continuous running-boards, one (1) at right end of each side. On cars with side running-boards, one (1) at each end of each running-board. ]\Ianner op Application : Ladders shall be securely fastened with not less than one-half (Vo) inch bolts or rivets. Side-handholds. Number: Four (4) or more. Dimensions: Same as specified for "Box and other house cars." Location: Horizontal: One (1) on face of each side-sill near each end on tank cars Vidth short side-sills, or one (1) attached to top of running-board projecting outward above sill-steps or ladders on tank cars without side-sills. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. If side safety-railings are attached to tank or tank bands four (4) additional vertical handholds shall be applied, one (1) as nearly as possible over each sill-step and securely fastened to tank or tank band. Manner of Application : Same as specified for ' ' Box and other house ears." End-handiioldr. Number: Four (4). Dimensions: Same as specified for "Box and other house cars. ' ' Location: Horizontal: One (1) near each side of each end of car on face of end-sill. Clearance of outer end of hand- APPENDIX D. 485 hold shall be not more than sixteen (16) inches from side of ear. Manner of Application: Same as specified for "Box and other house cars." Tank-head Handholds. Number: Two (2). [Not required if safety-railing runs around ends of tank.] Dimensions: Minimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clearance two (2), preferably two and one-half (21/2) inches. Location : Horizontal : One ( 1 ) across each head of tank not less than thirty (30) nor more than sixty (60) inches above platform on running-board. Clear length of hand- holds shall extend to within six (6) inches of outer diameter of tank at point of application. Manner of Application: Tank-head handholds shall be securely fastened. Safety-railings. Number: One (1) running around sides and ends of tank or two (2) running full length of tank. Dimensions: Minimum diameter, seven-eighths ("%) o^ ^^ inch, wrought iron or steel. Minimum clearance, two and one-half (214) inches. Location : Running full length of tank, not less than thirty (30) nor more than sixty (60) inches above platform or running-board. Manner op Application : Safety-railings shall be securely fastened to tank or tank-bands and secured against end shifting. Uncoupling-levers. Same as specified for "Box and other house cars." End-ladder Clearance. No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake-shaft 486 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT, brackets, brake-wheel, running-boards or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of ear and passing through the inside face of knuckle when closed with coupler-horn against the buffer- block or end-sill, and no other part of end of car or fixtures on same, above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. TANK CARS WITHOUT END-SILLS. Hand-brakes. Number: Same as specified for "Box and other house cars." Dimensions: Same as specified for "Box and other house cars." Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. IManner of Application : Same as specified for ' ' Box and other house cars." Brake-step. Same as specified for "Box and other house cars." Running-boards. Number: One (1). Dimensions: Minimum width on sides, ten (10) inches. Minimum width on ends, six (6) inches. Location : Continuous around sides and ends of tank. Manner of Application : If running-boards are applied below center of tank, outside edge of running-boards shall extend not less than seven (7) inches be5^ond bulge of tank. Running-boards at ends of car shall be not less than six (6) inches from a point vertically above the inside face of knuckle when closed with coupler-horn against the buffer- block, end-sill or back-stop. Running-boards shall be securely fastened to tank or tank bands. appendix d. 487 Sill-steps. Number: Four (4). [// tank has high running-hoards, maJcing ladders necessary, sill-steps must meet ladder re- quirements.] Dimensions: Same as specified for "Box and other house cars. ' ' Location: One (1) near each end on each side, flush with outside edge of running-board as near end of car as prac- ticable. Tread not more than twenty-four (24), preferably not more than twenty-two (22) inches above the top of rail. Manner op Application: Steps exceeding eighteen (18) inches in depth shall have an additional tread and be laterally braced. Sill-steps shall be securely fastened with not less than one- half (I/2) inch bolts with nuts outside (when possible) and riveted over* or with one-half (Y2) inch rivets. Side-handholds. Number: Four (4) or more. Dimensions: Same as specified for "Box and other house cars." Location: Horizontal: One (1) near each end on each side of car over sill-step, on running-board, not more than two (2) inches back from outside edge of running-board, pro- jecting downward or outward. Where such side-handholds are more than eighteen (18) inches from end of car, an additional handhold must be placed near each end on each side not more than thirty (30) inches above center line of coupler. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. If safety-railings are on tank, four (4) additional vertical handholds shall be applied, one (1) over each sill-step on tank. Manner op Application: Same as specified for "Box and other house cars." 488 federal employers' safety appliance act. End-handiiolds. Number: Four (4), Dimensions: Same as specified for "Box and other house cars. ' ' Location: Horizontal: One (1) near each side on each end of car on running-board, not more than two (2) inches back from edge of running-board projecting downward or outward, or on end of tank not more than thirty (30) inches above center line of coupler. ^Manner of Application: Same as specified for "Box and other house cars." Safety-railings. Number: One (1). Dimensions : Minimum diameter seven-eighths ( y^ ) o^ an inch, wrought iron or steel. IMinimum clearance two and one-half (21/2) inches. Location : Safety-railings shall be continuous around sides and ends of car, not less than thirty (30) nor more than sixty (60) inches above running-board. Manner of Application : Safety-railings shall be securely fastened to tank or tank bands, and secured against end shifting. UNCOUPIilNG-LEVERS. Number: Same as specified for "Box and other house cars." Dimensions: Same as specified for "Box and other house cars," except that minimum length of uncoupling-lever shall be forty-two (42) inches, measured from center line of end of car to handle of lever. Location : Same as specified for ' ' Box and other house cars," except that uncoupling-lever shall be not more than thirty (30) inches above center line of coupler. End-ladder Clearance. No part of car above buffer-block wdthin thirty (30) inches from side of car, except brake-shaft, brake-shaft APPENDIX D. 489 brackets, brake-wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or back-stop, and no other part of end of car or fixtures on same, above buffer-block, other than exceptions herein noted, shall extend beyond the face of buffer-block. CABOOSE CARS WITH PLATFORMS. Hand-brakes. Number: Each caboose car shall be equipped with an effi- cient hand-brake which shall operate in harmony with the power-brake thereon. The hand-brake may be of any efficient design, but must provide the same degree of safety as the design shown on Plate A. Dimensions: Same as specified for "Box and other house cars." Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft on caboose cars with platforms shall be located on platform to the left of center. Manner op Application : Same as specified for ' ' Box and other house cars." Running-boards. Number: One (1) longitudinal running-board. Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Full length of car, center of roof. [On caboose cars with cupolas, longitudinal running-hoards shall extend from ciipola to ends of roof.] Outside-metal-roof ears shall have latitudinal extensions leading to ladder locations. Manner of Application : Same as specified for ' ' Box and other house cars." 490 federal employers' safety appliance act. Ladders. Number: Two (2), Dimensions : None specified. Location : One ( 1 ) on each end. Manner of Application : Same as specified for ' ' Box and other house cars." Roof-handholds. Number: One (1) over each ladder. Wliere stiles of ladders extend twelve (12) inches or more above roof, no other roof-handholds are required. Dimensions: Same as specified for "Box and other house cars. ' ' Location : On roof of caboose, in line with and running parallel to treads of ladder, not less that eight (8) nor more than fifteen (15) inches from edge of roof. Manner of Application : Same as specified for "Box and other house cars." Cupola-handholds. Number: One (1) or more. Dimensions: Minimum diameter, five-eighths (%) of an inch, MTOUght iron or steel. Minimum clearance two (2), jjreferably two and one-half (21/2) inches. Location: One (1) continuous handhold extending around top of cupola not more than three (3) inches from edge of cupola-roof. Four (4) right-angle handholds, one (1) at each comer, not less than sixteen (16) inches in clear length from point of angle, may take the place of the one (1) continuous hand- hold specified, if locations coincide. Manner of Application : Cupola-liandliolds sliall be se- curely fastened witli not less than one-half (lA) ineli bolts witli nuts outside and riveted over or with not less than one- half (V2) inch rivets. appendix d. 491 Side-handholds. Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, thirty-six (36) inches. Minimum clearance, two (2), preferably two and one-half (21/2) inches. Location : One ( 1 ) near each end on each side of car, curving downward toward center of car from a point not less than thirty (30) inches above platform to a point not more than eight (8) inches from bottom of car. Top end of handhold shall be not more than eight (8) inches from outside face of end-sheathing. Manner of Application : Same as specified for ' ' Box and other house cars." End-piandholds. Number: Four (4). Dimensions: Same as specified for "Box and other house cars. ' ' Location: Horizontal: One (1) near each side on each end of car on face of platform end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from end of platform end-sill. Manner op Application : Same as specified for ' * Box and other house cars." End-platform Handholds. Number: Four (4). Dimensions : I\Iinimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two (2), preferably two and one-half (2i/2)j inches. Location: One (1) right-angle handhold on each side of each end extending horizontally from door-post to corner of car at approximate height of platform-rail, then downward to within twelve (12) inches of bottom of car. 492 FEDERAL EMPLOYERS' SAFETY APPLIANCE ACT. ilANNER OF Appi-ication : Handholds shall be securely fastened with bolts, screws or rivets. Caboose Platform-steps. Safe and suitable box steps leading to caboose platforms ^hall be provided at each corner of caboose. Lower tread of step shall be not more than twenty-four (24) inches above top of rail. Uncoupling-levers. Same as specified for "Box and other house cars." CABOOSE CARS "WITHOUT PLATFORMS. Hand-brakes. Number: Same as specified for "Box and other house cars. ' ' Dimensions: Same as specified for "Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft on caboose cars without platforms shall be located on end of car to the left of center, ]\Ianner of Application : Same as specified for ' ' Box and other house cars." Brake-step. Same as specified for "Box and other house cars." Running-boards. Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars." Location: Full length of car, center of roof. [On caboose cars with cupolas, longitudinal running-boards shall extend from cupola to ends of roof.] APPENDIX D. 493 Outside-metal-roof ears shall have latitudinal extensions leading to ladder locations. Manner of Application : Same as specified for ' ' Box and other house cars." Sill-steps. Same as specified for ''Box and other house cars." Side-door Steps. Number: Two (2) [if caboose has side-doors]. Dimensions: Minimum length, five (5) feet. Minimum width, six (6) inches. Minimum thickness of tread, one and one-half (1%) inches. Minimum height of back-stop, three (3) inches. Minimum height from top of rail to top of tread, twenty- four (24) inches. Location: One (1) under each side-door. Manner of Application: Side-door steps shall be sup- ported by two (2) iron brackets having a minimum cross- sectional area seven-eighths (Yg) by three (3) inches or equivalent, each of which shall be securely fastened to car by not less than two (2) three-fourth (%) inch bolts. Ladders. Number: Four (4). Dimensions: Same as specified for ''Box and other house cars. ' ' Location: Same as specified for "Box and other house cars" except when caboose has side doors, then side-ladders shall be located not more than eight (8) inches from doors. Manner of Application: Same as specified for "Box and other house cars." End-ladder Clearance. No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel, brake-step, running-board or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane 494 FEDERAL EMPLOYERS' SAFETY APPLM.NCE ACT. parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer- block. RoOF-HANDHOLDS. Number: Four (4). Dimensions: Same as specified for "Box and other house cars." Location: One (1) over each ladder, on roof in line with and running parallel to treads of ladder, not less than eight (8) nor more than fifteen (15) inches from edge of roof. Wliere stiles of ladders extend twelve (12) inches or more above roof, no other roof -handholds are required. Manner of Application : Roof-handholds shall be securely fastened with not less than one-half (i/o) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (Yo) inch rivets. Cupola-handholds. Number: One (1) or more. Dimensions: ]\Iinimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two (2), preferably two and one-half (21/2) , inches. Location: One (1) continuous cupola-handhold extending around top of cupola, not more than three (3) inches from edge of cupola-roof. Four (4) right-angle handholds, one (1) at each corner, not less than sixteen (16) inches in clear length from point of angle, may take the place of the one (1) continuous hand- hold specified, if locations coincide. Manner of Application : Cupola-handhold shall be se- curely fastened with not less than one-half (l/o) inch bolts \nth nuts outside and riveted over or with not less than one-half XYo) inch rivets. APPENDIX D. 495 SiDE-HANDIIOLDS. Number: Four (4). Dimensions: Same as specified for "Box and other house ears. ' ' Location : Horizontal : One ( 1 ) near each end on each side of car, not less than twenty- four (24) nor more than thirty (30) inches above center line of coupler. Clearance of outer end of handliold shall be not more than eight (8) inches from end of car. Manner of Application : Same as specified for * * Box and other house cars." Side-door Handholds. Number: Four (4) : Two (2) curved, two (2) straight. Dimensions: Minimum diameter, five-eighths (%) of an inch, Avrought iron or steel. Minimum clearance two (2), preferably two and one-half (2I/2) inches. Location: One (1) curved handhold, from a point at side of each door opposite ladder, not less than thirty-six (36) inches above bottom of car, curving away from door down- ward to a point not more than six (6) inches above bottom of car. One (1) vertical handhold at ladder side of each door from a point not less than thirty-six (36) inches above bottom of car to a point not more than six (6) inches above level of bottom of door. Manner of Application: Side-door handholds shall be securely fastened with not less than one-half (i/o) iiich bolts with nuts outside (when possible) and riveted over, or with not less than one-half (1/2) inch rivets. Horizontal End-haI'Tdholds. Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars. ' ' 496 FEDERAL EMPLOYERS' SAFETY APPLL4.NCE ACT. Location: Same as specified for "Box and other house cars," except that one (1) additional end-handhold shall be on each end of cars "v\-ith platform end-sills as heretofore de- scribed, unless car has door in center of end. Said handhold shall be not less than twenty-four (24) inches in length, located near center of car, not less than thirty (30) nor more than sixty (60) inches above platform end-sill. Manner of Application : Same as specified for * * Box and other house cars." Vertical End-handholds. Same as specified for "Box and other house cars." Uncoupling-levers. Same as specified for "Box and other house cars." PASSENGER-TRAIN CARS WITH WIDE VESTIBULES. Hand-brakes. Number : Each passenger-train car shall be equipped with an efficient hand-brake, which shall operate in harmony with the power-brake thereon. Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. Side-handholds. Number: Eight (8). Dimensions: Minimum diameter, five-eighths (%) of an inch, metal. Minimum clear length, sixteen (16) inches. Minimum clearance, one and one-fourth (ly^), preferably one and one-half (11/2) inches. Location: Vertical: One (1) on each vestibule door-post. ]\L\jnner of Application : Side-handholds shall be securely fastened with bolts, rivets or screws. appendix d. 497 End-handholds. Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches. Minimum clearance, two (2), preferably two and one-half (2I/2) inches. Handholds shall be flush with or project not more than one (1) inch beyond vestibule face. Location : Horizontal : One near each side on each end projecting downward from face of vestibule end-sill. Clear- ance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner of Application : End-handholds shall be securely fastened with bolts or rivets. Wlien marker-sockets or brackets are located so that they cannot be conveniently reached from platforms, suitable steps and handholds shall be provided for men to reach such sockets or brackets. Uncoupling-levers. Uncoupling attachments shall be applied so they can be operated by a person standing on the ground. Minimum length of ground uncoupling-attachment, forty- two (42) inches, measured from center line of end of car to handle of attachment. On passenger-train cars used in freight or mixed-train service, the uncoupling attachments shall be so applied that the coupler can be operated from left side of car. PASSENGER-TRAIN CARS WITH OPEN END- PLATFORMS. Hand-brakes. Number: Each passenger-train car shall be equipped with an efficient hand-brake, which shall operate in harmony with the power-brake thereon. 498 FEDERAL EMPLOYERS' SAFffY APPLL4NCE ACT. Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. End-handholds. Number: Four (4). Dimensions: ]\Iinimura diameter, five-eighths (%) of an inch, wrought iron or steel. I\Iinimum clear length, sixteen (16) inches. ]\rinimum clearance, two (2), preferably two and one-half (21/2), inches. Handholds shall be flush ■v^^th or project not more than one (1) inch beyond face of end-sill. Location: Horizontal: One (1) near each side of each end on face of platfonn end-sill, projecting downward. Clear- ance of outer end of handhold shall be not more than sixteen (16) inches from end of end-sill. ]\Ianner op Application : End-handholds shall be securely fastened wdth bolts or rivets. End-handholds. Number: Four (4). [Cars equipped with safety-gates do not require end-platform handholds.] Dimensions: Minimum clearance two (2), preferably two and one-half (2 14) inches metal. Location : Horizontal from or near door-post to a point not more than twelve (12) inches from comer of car, then approximately vertical to a point not more than six (6) inches from top of platform. Horizontal portion shall be not less than twenty-four (24) inches in length nor more than forty (40) inches above platform. Manner of Application : End-platform handholds shall be securely fastened with bolts, rivets or screws. Uncoupling-levers. Uncoupling attachments sliall be applied so they can be operated by a person standing on the ground. APPENDIX D. 499 Minimum length of ground uncoupling-attachraent, forty- two (42) inches, measured from center of end of car to handle of attachment. On passenger-train cars used in freight or mixed-train service the uncoupling attachments shall he so applied that the coupler can be operated from left side of car. PASSENGER-TRAIN CARS WITHOUT END- PLATFORMS. Hand-brakes. Number : Each passenger-train ear shall be equipped with an efficient hand-brake which shall operate in harmony with the power-brake thereon. Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. Sill-steps. Number: Four (4). Dimensions: Minimum length of tread ten (10), prefer- ably twelve (12) inches. Minimum cross-sectional area one-half (i/o) by one and one- half {IVo) inches or equivalent, wrought iron or steel. Minimum clear depth eight (8) inches. Location: One (1) near each end on each side not more than twenty-four (24) inches from comer of car to center of tread of sill-step. Outside edge of tread of step shall be not more than two (2) inches inside of face of side of car. Tread shall be not more than twenty-four (24), preferably not more than twenty-two (22) inches above the top of rail. Manner op Application: Steps exceeding eighteen (18) inches in depth shall have an additional tread and be laterally braced. Sill-steps shall be securely fastened with not less than one-half (I/2) inch bolts with nuts outside (when possible) 500 FEDERAL EMPLOYERS' SAFETY APPLL&NCE ACT. and riveted over, or with not less than one-half (i^) inch rivets. SiDE-HANDIIOLDS. Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrouglit iron or steel. Minimum clear length, sixteen (16) preferably twenty- four (24) inches. Minimum clearance, two (2), preferably two and one-half (21/2) inches. Location: Horizontal or vertical: One (1) near each end on each side of car over sill-step. If horizontal, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler. If vertical, lower end not less than eighteen (18) nor more than twenty-four (24) inches above center line of coupler. ^Manner of Application : Side-handholds shall be securely fastened with bolts, rivets or screws. End-handholds. Number: Four (4). Dimensions: JMinimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches. Minimum clearance, two (2), preferably two and one-half (21/2) inches. Location: Horizontal: One (1) near each side on each end projecting downward from face of end-sill or sheathing. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. jManner of Application : Handholds shall be flush with or project not more than one (1) inch beyond face of end-sill. End-handholds shall be securely fastened v/ith bolts or rivets. When marker-sockets or brackets are located so that they cannot be conveniently reached from platforms, suitable steps APPENDIX D. 501 and handholds shall be provided for men to reach such sockets or brackets. End-handrails. [On cars urith projecting end-sills.] Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two (2), preferably two and one-half (21/2) inches. Location: One (1) on each side of each end, extending horizontally from door-post or vestibule-frame to a point not more than six (6) inches from corner of car, then approxi- mately vertical to a point not more than six (6) inches from top of platform end-sill ; horizontal portion shall be not less than thirty (30) nor more than sixty (60) inches above plat- form end-sill. Manner op Application : End hand-rails shall be securely fastened with bolts, rivets or screws. Side-door Steps. Number: One (1) under each door. Dimensions: Minimum length of tread, ten (10), prefer- ably twelve (12) inches. Minimum cross-sectional area, one-half (i/^) by one and one-half (II/2) inches or equivalent, wrought iron or steel. Minimum clear depth, eight (8) inches. Location: Outside edge of tread of step not more than two (2) inches inside of face of side of car. Tread not more than twenty-four (24), preferably not more than twenty-two (22) inches above the top of rail. Manner of Application: Steps exceeding eighteen (18) inches in depth shall have an additional tread and be laterally braced. Side-door steps shall be securely fastened with not less than one-half (I/2) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (%) inch rivets. 502 FEDERAL EMPLOYERS' SAFETY APPLLVNCE ACT. A vertical handhold not less than twenty-four (24) inches in clear length shall be applied above each side-door step on door-post. Uncoupling-levers. Uncoupling attachments shall be applied so they can be operated by a person standing on the ground. Minimum length of ground uncoupling-attachment, forty- two (42) inches, measured from center line of end of car to handle of attachment. On passenger-train cars used in freight or mixed-train service, the uncoupling attachment shall be so applied that the coujiler can be operated from the left side of car. STEAM LOCOMOTIVES USED IN ROAD SERVICE. Tender Sill-steps. Number: Four (4) on tender. Dimensions: Bottom tread not less than eight (8) by twelve (12) inches, metal. [May have wooden treads.] If stirrup-steps are used, clear length of tread shall be not less than ten (K)), preferably twelve (12) inches. Location: One (1) near each corner of tender on sides. ]\Ianner of Application : Tender sill-steps shall be securely fastened with bolts or rivets. Pilot Sill-steps. Number: Two (2). Dimensions: Tread not less than eight (8) inches in width by ten (10) inches in length, metal. [May have ivooden treads.] Location: One (1) on or near each end of buffer-beam outside of rail and not more th;in sixteen (16) inches above rail. I^Ianner of Application: Pilot sill-steps shall be securely fastened with bolts or rivets. appendix d. 503 Pilot-beam Handholds. Number: Two (2). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, fourteen (14), preferably sixteen (16), inches. Minimum clearance, two and one-half (2I/2) inches. Location : One ( 1 ) on each end of buffer-beam. [// uncoupling-lever extends across front end of locomotive to within eight (8)inches of end, of hnffer-heam, and is seven- eighths {Ys) of an inch or more in diameter, securely fastened, with a clearance of two and one-half (^i/o) inches, it is a handhold.] Manner op Application: Pilot-beam handholds shall be securely fastened with bolts or rivets. SiDE-H ANDHOLDS. Number: Six (6). Dimensions : Minimum diameter, if horizontal, five-eighths (%) of an inch; if vertical, seven-eighths (%) of an inch, wrought iron or steel. Horizontal, minimum clear length, sixteen (16) inches. Vertical, clear length equal to approximate height of tank. Minimum clearance two (2), preferably two and one-half (21/2) inches. Location: Horizontal or vertical: If vertical, one (1) on each side of tender within six (6) inches of rear or on corner, if horizontal, same as specified for "Box and other house ears." One (1) on each side of tender near gangway; one (1) on each side of locomotive at gangway; applied vertically. Manner of Application : Side-handholds shall be securely fastened with not less than one-half (V2) inch bolts or rivets. Rear-end Handholds. Number: Two (2). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. 504 FEDERAL EMPLOYERS' SAFETY APPLIANCE AC5T. Minimum clear length, fourteen (14) inches. Minimum clearance two (2), preferably two and one-half (21/^) inches. Location : Horizontal : One ( 1 ) near each side of rear end of tender on face of end-sill. Clearance of outer end of hand- hold shall be not more than sixteen (16) inches from side of tender. Manner op Application: Rear-end handholds shall be se- curely fastened with not less than one-half (I/2) ii^ch bolts or rivets. Uncoupling-levers. Number: Two (2) double levers, operative from either side. Dimensions: Rear-end levers shall extend across end of tender with handles not more than twelve (12), preferably nine (9) inches from side of tender with a guard bent on handle to give not less than two (2) inches clearance around handle. Location: One (1) on rear end of tender and one (1) on front end of locomotive. Handles of front-end levers shall be not more than twelve (12), preferably nine (9) inches from ends of buffer-beam, and shall be so constructed as to give a minimum clearance of two (2) inches around handle. Manner of Application: Uncoupling-levers shall be se- curely fastened with bolts or rivets. Couplers. Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive. STEAM LOCOMOTIVES USED IN SWITCHING SERVICE. Footboards. Number: Two (2) or more. Dimensions: Minimum width of tread, ten (10) inches, w'ood. APPENDIX D. 505 Minimum thickness of tread, one and one-half (1^^), preferably two (2) inches. Minimum height of back-stop, four (4) inches above tread. Height from top of rail to top of tread, not more than twelve (12) nor less than nine (9) inches. Location: Ends or sides. If on ends, they shall extend not less than eighteen (18) inches outside of gauge of straight track, and shall be not more than twelve (12) inches shorter than buffer-beam at each end. Manner of Application: End footboards may be con- structed in two (2) sections, provided that practically all space on each side of coupler is filled; each section shall be not less than three (3) feet in length. Footboards shall be securely bolted to two (2) one (1) by four (4) inches metal brackets, provided footboard is not cut or notched at any point. If footboard is cut or notched or in two (2) sections, not less than four (4) one (1) by three (3) inches metal brackets shall be used, two (2) located on each side of coupler. Each bracket shall be securely bolted to buffer-beam, end-sill or tank-frame by not less than two (2) seven-eighths (%) inch bolts. If side footboards are used, a substantial handhold or rail shall be applied not less than thirty (30) inches nor more than sixty (60) inches above tread of footboard. Sill-steps. Number: Two (2) or more. Dimensions: Lower tread of step shall be not less than eight (8) by twelve (12) inches, metal. [May have wooden treads.] If stirrup-steps are used, clear length of tread shall be not less than ten (10), preferably twelve (12) inches. Location: One (1) or more on each side at gangway se- cured to locomotive or tender. IManner op Application: Sill-steps shall be securely fastened with bolts or rivets. 506 federal employers safety appllince act. End-handholds. Number: Two (2). Dimensions: Minimum diameter, one (1) inch, wrought iron or steel. Minimum clearance, four (4) inches, except at coupler casting or braces, when minimum clearance shall be two (2) inches. Location: One (1) on pilot buffer-beam; one (1) on rear end of tender, extending across front end of locomotive and rear end of tender. Ends of handholds shall be not more than six (6) inches from ends of buffer-beam or end-sill, securely fastened at ends. IManner of Application : End-handliolds shall be securely- fastened mth bolts or rivets. SiDE-HANDHOLDS. Number: Four (4). Dimensions: Minimum diameter, seven-eighths (%) of an inch, wrought iron or steel. Clear length equal to approximate height of tank. I\[inimum clearance, two (2), preferably two and one-half (2Vo) inches. Location: Vertical: One (1) on each side of tender near front comer; one (1) on each side of locomotive at gangway. ^Manner op Application : Side-handholds shall be securely fastened with bolts or rivets. Uncoupling-levers. Number: Two (2) double levers, operative from either side. Dimensions : Handles of front-end levers shall be not more than twelve (12), preferably nine (9) inches from ends of buffer-beam, and shall be so constructed as to give a minimum clearance of two (2) inches around handle. Rear-end levers shall extend across end of tender with handles not more than twelve (12), preferably nine (9), inches from side of tender, with a guard bent on handle to give not less than two (2) inches clearance around handle. APPENDIX D. 507 Location: One (1) on rear end of tender and one (1) on front end of locomotive. Handrails and Steps for Headlights. Switching-locomotive with sloping tenders with manhole or headlight located on sloping portion of tender shall be equipped with secure steps and handrail or with platform and handrail leading to such manhole or headlight. End-ladder Clearance. No part of locomotive or tender except draft-rigging, coupler and attachments, safety-chains, buffer-block, foot- board, brake-pipe, signal-pipe, steam-heat pipe or arms of uncoupling-lever shall extend to within fourteen (14) inches of a vertical plane passing through the inside face of knuckle when closed with horn of coupler against buffer-block or end-sill. Couplers. Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive. SPECIFICATIONS COMMON TO ALL STEAM LOCOMOTIVES. Hand-brakes. Hand-brakes will not be required on locomotives nor on tenders when attached to locomotives. If tenders are detached from locomotives and used in special service, they shall be equipped with efficient hand-brakes. Running-boards. Number: Two (2). Dimensions: Not less than ten (10) inches wide. If of wood, not less than one and one-half (1%) inches in thick- ness; if of metal, not less than three-sixteenths (3-16) of an inch, properly supported. Location: One (1) on each side of boiler extending from cab to front end near pilot-beam. [Eunning-boards may he 508 FEDERAL EMPLOYERS' SAPETY APPLLINCE ACT. in sections. Flat-top steam-chests may form section of running-board.] ^Manner of Application : Running boards shall be securely fastened with bolts, rivets or studs. Locomotives having Wootten type boilers with cab located on top of boiler more than twelve (12) inches forward from boiler-head shall have suitable running-boards running from cab to rear of locomotive, with handrailings not less than twenty (20) nor more than forty-eight (48) inches above out- side edge of running-boards, securely fastened with bolts, rivets or studs. Handrails. Number: Two (2) or more. Dimensions: Not less than one (1) inch in diameter, ^vrought iron or steel. Location: One (1) on each side of boiler extending from near cab to near front end of boiler, and extending across front end of boiler, not less than twenty-four (24) nor more than sixty-six (66) inches above running-board. jManner of Application : Handrails shall be securely fastened to boiler. Tenders of Vanderbilt Type. Tenders known as the Vanderbilt type shall be equipped with running-boards; one (1) on each side of tender not less than ten (10) inches in mdth and one (1) on top of tender not less than forty-eight (48) inches in wddth, extending from coal space to rear of tender. There shall be a handrail on each side of top running-board, extending from coal space to rear of tank, not less than one (1) incli in diameter and not less than twenty (20) inches in height above running-board from coal space to manhole. There shall be a handrail extending from coal space to within twelve (12) inches of rear of tank, attached to each side of tank above side running-board, not less than thirty (30) nor more than sixty-six (66) inches above running- board. I APPENDIX D. 509 There shall be one (1) vertical end-handhold on each side of Vanderbilt type of tender, located within eight (8) inches of rear of tank extending from within eight (8) inches of top of end-sill to within eight (8) inches of side handrail. Post supporting rear end of side running-board if not more than two (2) inches in diameter and properly located, may form section of handhold. An additional horizontal end-handhold shall be applied on rear end of all Vanderbilt type of tenders which are not equipped with vestibules. Handhold to be located not less than thirty (30) nor more than sixty-six (66) inches above top of end-sill. Clear length of handhold to be not less than forty-eight (48) inches. Ladders shall be applied at forward ends of side running- boards. Handrails and Steps for Headlights. Locomotives having headlights which can not be safely and conveniently reached from pilot-beam or steam-chests shall be equipped wdth secure handrails and steps suitable for the use of men in getting to and from such headlights. A suitable metal end or side-ladder shall be applied to all tanks more than forty-eight (48) inches in height, measured from the top of end-sill, and securely fastened with bolts or rivets. Couplers. Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive. Cars of construction not covered specifically in the fore- going sections, relative to handholds, sill-steps, ladders, hand- brakes and running-boards may be considered as of special construction, but shall have, as nearly as possible, the same complement of handholds, sill-steps, ladders, hand-brakes and running-boards as are required for cars of the nearest ap- proximate type. "Right" or ''Left'* refers to side of person when facing end or side of ear from ground. 510 FEDERAL EMPLOYERS' SAFETY APPLLA.NCE ACT, To provide for the usual inaccuracies of manufacturing and for wear, where sizes of metal are specified, a total variation of five (5) per cent, below size given is permitted. And it is further ordered, That a copy of this order be at once served on all common carriers, subject to the provisions of said act, in a sealed envelope by registered mail. By the Commission : Edward A. Moseley, Secretary. A true copy. Edw. a. Moseley, Secretary. INTERSTATE COMMERCE COMMISSION. ORDER. At a General Session op the Interstate Commerce Com- mission, Held at its Office in Washington, D. C, on the 13th Day op March, A. D. 1911. Present: JuDSON C. Clements, Charles A. Prouty, Franklin K. Lane, Edgar E. Clark, James S. Harlan, Charles C. McChord, Balthasar H. Meyer, Commissioners. IN THE MATTER OF THE EXTENSION OF THE PERIOD WITHIN WHICH COMMON CARRIERS SHALL COMPLY WITH THE REQUIREMENTS OF AN ACT ENTITLED, ''AN ACT TO SUPPLEMENT 'AN ACT TO PRO:\rOTE THE SAFETY OF EM- PLOYEES AND TRAVELERS UPON RAILROADS BY COMPELLING COMMON CARRIERS ENGAGED IN INTERSTATE COIMMERCE TO EQUIP THEIR CARS WITH AUTOMATIC COUPLERS AND CONTINUOUS I Pre/emile /6 ' Minimum 15 " SuiUle cotter ~^^%MinmUm ^ ' •' , n nV Riveted oi/er c^ uje locJc nut in Ma^ be di-shed^ Taper ^' in /£. -m place of cotter ij .Malleable iron, wroufAt iron or .steel. -Jfel /eJ3 than l-^ teel/i Pre/eraifle, /6 teet/t - rn I I r^ ^^ iraJce sha/t .support 111 I — — ' shall 6e faztened with- not less than /^ Solte or rivets /e> ^ %-:: VMimr^umJJ^ There .sAall be a ri^id metal coTineclion be ■ tmeen iraJce sia/fand pipot of pawl \ /orm. of SraAe shaft .step <3- ^3ra7ee pawl shali^ be pivoted u/fon a -^ 3olt or rivet, upon a trunnion secured by not i than yz iolt or rivet / ' Jlexa^onal or ^gruare A ed ^ ' 6ol£. Riveted oi/i nut. J^inimujn 1 4t, y- — — Suitable cotter or rifip ^re/eraile f Minimum ^' \Any efficient arrangement of ratchet-wheel and jja I — PrgpaiU /6 ' Minimum 15 ' J •if6l^ collar ~:i^4MmmL^ [Any efficient t nt of ratc/iet-wheel and pawl maij be wed.] APPENDIX D. 511 BRAKES AND THEIR LOCOMOTIVES WITH DRIV- ING-WHEEL BRAKES AND FOR OTHER PUR- POSES,' AND OTHER SAFETY APPLIANCE ACTS, AND FOR OTHER PURPOSES," APPROVED APRIL 14, 1910, AS AMENDED BY "AN ACT MAKING AP- PROPRIATIONS FOR SUNDRY CIVIL EXPENSES OP THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1912, AND FOR OTHER PUR- POSES," APPROVED MARCH 4, 1911. Whereas, Pursuant to the provisions of the act above stated, the Interstate Commerce Commission, by its orders duly made and entered on October 13, 1910, and March 13, 1911, has designated the number, dimensions, location, and manner of application of the appliances provided for hy Section 2 of the act aforesaid and Section 4 of the act of jMarcli 2, 1893, as amended April 1, 1896, and March 2, 1903, known as the "Safety Appliance Acts"; and whereas the matter of ex- tending the period within which common carriers shall comply with the provisions of Section 2 of the act first aforesaid being under consideration, upon full hearing and for good cause shown : It is ordered, That the period of time within which said common carriers shall comply with the provisions of Section 8 of said act in respect of the equipment of ears in service en the 1st day of July, 1911, be, and the same is hereby, ex- tended as follows, to-wit : Freight-train Cars. (a) Carriers are not required to change the brakes from right to left side on steel or steel-underframe cars with plat- form end-sills, or to change the end-ladders on such cars, except when such appliances are renewed, at which time they must be made to comply with the standards prescribed in said order of March 13, 1911. (&) Carriers are granted an extension of five years from July 1, 1911, to change the location of brakes on all cars other GradaaTea lock ea^fina^ maj te tfjf^ ^J C/ga. ^fS^JfZVert" 'A^at.o'nfo co^cca/ccf e.cfs,!/ cars QQa/nsf />u/^r dfocA oz- ena at f/. ana, ff^/o /fed ^ ^ , ^ J t 6racAet /j J6ed tv/ten rod Qraduafed /ocA cas//y. /J /'/? extreme forward fioi/thn in bracAef. •d posts, a//aiAf,n^ free- dom in h'f^my Ofid /a/f p/a/ nt troc/cef e end of hand/e /o extend not /es. 9 be/otv tottom a/e^ds///or clearance of c*' on^und hartd/e Appi'cafiot? to outside encts/// car^ PLATE B -Smlailf cclUr m. B i5 vil may be itsed.] n ^<^ PLATE A. 512 FEDERAL EMPLOYERS' S.VFETY APPLLVNCE ACT. than those designated in paragraph (a) to comply with the standards prescribed in said order. (c) Carriers are granted an extension of five years from July 1, 1911, to comply with the standards prescribed in said order in respect of all brake specifications contained therein, other than those designated in paragraphs (a) and (&), on cars of all classes. (d) Carriers are not required to make changes to secure additional end-ladder clearance on cars that have ten or more inches end-ladder clearance, within thirty inches of side of car, until ear is shopped for w^ork amounting to practically rebuilding body of car, at which time they must be made to comply with the standards prescribed in said order. (e) Carriers are granted an extension of five years from July 1, 1911, to change cars having less than ten inches end- ladder clearance, within thirty inches of side of car, to comply with the standards prescribed in said order. (/) Carriers are granted an extension of five years from July 1, 1911, to change and apply all other appliances on freight-train cars to comply with the standards prescribed in said order, except that when a car is shopped for work amounting to practically rebuilding body of car, it must then be equipped according to the standards prescribed in said order in respect to handholds, running-boards, ladders, sill- steps, and brake-staffs : Provided, That the extension of time herein granted is not to be construed as relieving carriers from complying with the provisions of Section 4 of the Act of March 2, 1893, as amended April 1, 1896, and March 2, 1903. (g) Carriers are not required to change the location of handholds (except end-handholds under end-sills), ladders, sill-steps, brake-wheels, and brake-staffs on freight-train cars where tlie appliances are within three inches of the required location, except that when cars undergo regular repairs they must be made to comply with the standards prescribed in said order. i appendix d. 513 Passenger-train Cars. (h) Carriers are granted an extension of three years from July 1, 1911, to change passenger-train ears to comply with the standards prescribed in said order. Locomotives, Switching. (i) Carriers are granted an extension of one year from July 1, 1911, to change switching locomotives to comply with the standards prescribed in said order. Locomotives, Other Than Switching. (j) Carriers are granted an extension of two years from July 1, 1911, to change all locomotives of other classes to comply with the standards prescribed in said order. A true copy. Edw. a. Moseley, Secretary. BOILER INSPECTION LAW. 36 U. S. Stat, at L. 913. An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this Act shall apply to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad in the District of Columbia, or in any territory of the United States, or from one state or territory of the United States or the District of Columbia to any other state or territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign coiuitry, or from any place in the United States through a foreign country to any other place in the United States. The term ''railroad" as 514 FEDERAL EMPLOYERS' SAFETY APPLL\NCE ACT. used in this Act shall include all the roads in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease ; and the term "employees" as used in this Act shall be held to mean persons actually engaged in or connected with the movement of any train. Sec. 2. That from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this Act to use any locomotive engine propelled by steam power in moving inter- state or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in mo\ang traffic mthout unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this Act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for. Sec, 3. That there shall be appointed by the President, by and with the advice and consent of the Senate, a chief inspector and two assistant chief inspectors of locomotive boilers, who shall have general superintendence of the inspec- tors hereinafter provided for, direct them in the duties hereby imposed upon them, and see that the requirements of this Act and the rules, regulations, and instructions made or given hereunder are observed by common carriers subject hereto. The said chief inspector and his two assistants shall be se- lected vnih reference to their practical knowledge of the con- struction and repairing of boilers, and to their fitness and ability to systematize and carry into effect the provisions hereof relating to the inspection and maintenance of locomo- tive boilers. The chief inspector shall receive a salary of four thousand ($4000) dollars per year, and the assistant chief inspectors shall each receive a salary of three thousand ($3000) dollars per year; and each of the three shall be paid his traveling expenses incurred in the performance of his APPENDIX D. 515 duties. The office of the chief inspector shall be in Washing- ton, District of Columbia, and the Interstate Commerce Com- mission shall provide such stenographic and clerical help as the business of the offices of the chief inspector and his said assistants may require. Sec. 4. That immediately after his appointment and quali- fication the chief inspector shall divide the territory com- prising the several states, the territories of New ]\Iexico and Arizona, and the District of Columbia into fifty locomotive boiler-inspection districts, so arranged that the service of the inspector appointed for each district shall be most effective, and so that the work required of each inspector shall be sub- stantially the same. Thereupon there shall be appointed. by the Interstate Commerce Commission fifty inspectors of loco- motive boilers. Said inspectors shall be in the classified service, and shall be appointed after competitive examination according to the law and the rules of the Civil Service Com- mission governing the classified service. The chief inspector shall assign one inspector so appointed to each of the dis- tricts hereinbefore named. Each inspector shall receive a salary of one thousand eight hundred ($1,800) dollars per year and his traveling expenses while engaged in the per- formance of his duty. He shall receive in addition thereto an annual allowance for office rent, stationery, and clerical assistance, to be fixed by the Interstate Commerce Commission, but not to exceed in the case of any district inspector six hun- dred ($600) dollars per year. In order to obtain the most competent inspectors possible, it shall be the duty of the chief inspector to prepare a list of questions to be propounded to applicants with respect to construction, repair, operation, testing, and inspection of locomotive boilers, and their prac- tical experience in such work, which list, being approved by the Interstate Comm^erce Commission, shall be used by the Ci\dl Service Commission as a part of its examination. No person interested, either directlj^ or indirectly, in any patented article required to be used on any locomotive undei' supervision, or who is intemperate in his habits, shall be 516 FEDERAL EMPLOYERS' SAFETY APPIJANCE ACT. eligible to hold the office either of chief inspector or assistant or district inspector. Sec. 5. That each carrier subject to this Act shall file its rules and instructions for the inspection of locomotive boilers with tlie chief inspector within three months after the ap- proval of this Act, and after hearing and approval by the Interstate Commerce Commission, such rules and instructions, with such modifications as the Commission requires, shall be- come obligatory upon such carrier: Provided, however-, that if any carrier subject to this Act shall fail to file its rules and instructions, the chief inspector shall prepare rules and in- structions not inconsistent herewith for the inspection of loco- motive boilers, to be observed by such carrier ; which rules and instructions, being approved by the Interstate Commerce Commission, and a copy thereof being served on the president, general manager, or general superintendent of such carrier, shall be obligatory, and a A'iolation thereof punished as here- inafter provided: Provided, also, that such common carrier may, from time to time, change the rules and regulations herein provided for, but such change shall not take effect, and the new rules and regulations be in force, until the same shall have been filed with and approved by the Interstate Com- merce Commission. The chief inspector shall also make all needful rules, regulations, and instructions not inconsistent herewith for the conduct of his office, and for the government of the district inspectors : Provided, however, that all such rules and instructions shall be approved by the Interstate Commerce Commission before they take effect. Sec. 6. That it shall be the duty of each inspector to be- come familiar, so far as practicable, with the condition of each locomotive boiler ordinarily housed or repaired in his district, and if any locomotive is ordinarily housed or repaired in two or more districts, then tlie chief inspector or an as- sistant sliall make such division between inspectors as will avoid the necessity for duplication of work. Each inspector shall make such personal inspection of the locomotive boilers under his care, from time to time, as may be necessary to APPENDIX D. 517 fiilly carry out tlie provisions of this Act, and as may be consistent with his other duties, but he shall not be required to make such inspections at stated times or at regular intervals. His first duty shall be to see that the carriers make inspections in accordance with the rules and regulations established or approved by the Interstate Commerce Com- mission, and that carriers repair the defects which such in- spections disclose before the boiler or boilers or appurte- nances pertaining thereto are again put in service. To this end each carrier subject to this Act shall file with the inspec- tor in charge, under the oath of the proper officer or em- ployee, a duplicate of the report of each inspection required by such rules and regulations, and shall also file with such inspector, under the oath of the proper officer or employee, a report showing the repair of the defects disclosed by the in- spection. The rules and regulations hereinbefore provided for shall prescribe the time at which such reports shall be made. Whenever any district inspector shall, in the performance of his duty, find any locomotive boiler or apparatus pertaining thereto not conforming to the requirements of the law or rules and regulations established and approved as hereinbefore stated, he shall notify the carrier in writing that the locomo- tive is not in serviceable condition, and thereafter such boiler shall not be used until in serviceable condition : Provided, that a carrier, when notified by an inspector in writing that a locomotive boiler is not in serviceable condition, because of defects set out and described in said notice, may, within five days after receiving said notice, appeal to the chief inspector by telegraph or by letter to have said boiler re-examined, and upon receipt of the appeal from the inspector's decision, the chief inspector shall assign one of the assistant chief in- spectors, or any district inspector other than the one from whose decision the appeal is taken, to re-examine and inspect said boiler within fifteen days from date of notice. If on such re-examination the boiler is found in serviceable con- dition, the chief inspector shall immediately notify the carrier in writing, whereupon such boiler may be put into service 518 FEDERAL EMPLOYERS' S.^JETY ArPLLVNCE ACT. without further delay; but if the re-examination of said I'oiler sustains the decision of the district inspector, the chief mspoctor shall at once notify the carrier owning or operating such locomotive that the appeal from the decision of the in- spector is dismissed, and upon receipt of such notice the carrier may, within thirty days, appeal to the Interstate Com- merce Commission, and, on such appeal, and after hearing, said Commission shall have power to revise, modify, or set aside such action of the chief inspector and declare that said locomotive is in serviceable condition, and authorize the same to be operated: Provided, further, that pending either appeal the requirements of the inspector shall be effective. Sec. 7. That the chief inspector shall make an annual report to the Interstate Commerce Commission of the work done during the year, and shall make such recommendations for the betterment of the service as he may desire. Sec. 8. That in the case of accident resulting from failure from any cause of a locomotive boiler, or its appurtenances, resulting in serious injury or death to one or more persons, a statement forth-v\ith must be made in writing of the fact of such accident, by the carrier owning or operating said loco- motive, to the chief inspector. Wliereupon the facts con- cerning such accident shall be investigated by the chief in- spector or one of his assistants, or such inspector as the chief inspector may designate for that purpose. And where the locomotive is disabled to the extent that it can not be run by its own steam, the part or parts affected by the said accident shall be preserved by said carrier intact, so far as possible, without hindrance or interference to traffic until after said inspection. The chief inspector or an assistant, or the desig- nated inspector making the investigation, shall examine or cause to be examined thoroughly the boiler or part affected, making full and detailed report of the cause of the accident to the chief inspector. The Interstate Commerce Commission may, at any time, call on the chief inspector for a report of any accident em- braced in this section, and, on the receipt of said report, if APPENDIX D. 519 it deems it to the public interest, make reports of such in- vestigations, stating the cause of accident, together with such recommendations as it deems proper. Such reports shall be made public in such manner as the Commission deems proper. Neither said report nor any report of said investigation, nor any part thereof, shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said report or investigation. Sec. 9. That any common carrier violating this Act, or any rule or regulation made under its provisions, or any lawful order of any inspector, shall be liable to a penalty of one hundred ($100) dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States attorney in the district court of the United States hav- ing jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such attorneys, subject to the direction of the Attorney-General, to bring such suits upon duly verified information being lodged with them, respectively, of such violations having occurred ; and it shall be the duty of the chief inspector of locomotive boilers to give information to the proper United States attorney of all viola- tions of this Act coming to his knowledge. Sec. 10. That tlie total amounts directly appropriated to carry out the provisions of this Act shall not exceed for any one fiscal year the sum of three hundred thousand ($300,000) dollars. Approved, February 17, 1911. APPENDIX E. ASH PANS An act To promote the safety of employees on railroads. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That on and after the first day of January, nineteen hundred and ten, it shall be unlawful for any common carrier engaged in interstate or foreign commerce by railroad to use any loco- motive in moving interstate or foreign traffic, not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employee going under such locomotive. Sec. 2. That on and after the first day of January, nine- teen hundred and ten, it shall be unlawful for any common carrier by railroad in any Territory of the United States or of the District of Columbia to use any locomotive not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employee going under such locomotive. Sec. 3. That any any such common carrier using any locomotive in violation of any of the provisions of this Act shall be liable to a penalty of two hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Commerce Commission to lodge 520 } APPENDIX E. 521 with the proper district attorneys information of any such violations as may come to its knowledge. Sec. 4. That it shall be the duty of the Interstate Com- merce Commission to enforce the provisions of this Act, and all powers heretofore granted to said Commission are hereby extended to it for the purpose of the enforcement of this Act. Sec. 5. That the term "common carrier" as used in this Act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier. Sec. 6. That nothing in this Act contained shall apply to any locomotive upon which, by reason of the use of oil, electricity, or other such agency, an ash pan is not necessary. Approved, May 30, 1908. APPENDIX F. HOURS OF LABOR FOR RAILROAD MEN. An act To promote the safety of employees and travelers upon railroads by limiting the hours of service of em- ployees thereon. Be it enacted hy the Senate and House of Representatives of the United States of Atnerica in Congress assembled, That the provisions of this Act shall apply to any common carrier or carriers, their officers, agents, and employees, en- gaged in the transportation of passengers or property by railroad in the District of Columbia or any Territory of the United States, or from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term "railroad" as used in this Act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether o^\^led or operated under a contract, agreement, or lease; and the term "employees" as used in this Act shall be held to mean persons actually engaged in or connected with the movement of any train. Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this Act to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved 522 APPENDIX F. 523 and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty ; and no such employee who has been on duty sixteen hours in the aggre- gate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty; Provided, That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches reports, trans- mits, receives or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and sta- tions continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four ad- ditional hours in a twentj'-four-hour period on not exceed- ing three days in any week: Provided further, The Inter- state Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the pro- visions of this proviso as to such case. Sec. 3. That any such common carrier or &ny officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be re- covered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed ; and it shall be the duty of such dis- trict attorney to bring such suits upon satisfactory informa- tion being lodged with him ; but no such suit shall be brought after the expiration of one year from the date of such viola- tion ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys in- 524 FEDERAL HOURS OF LABOR ACT. formation of any such violations as may come to his knowl- edge. In all prosecutions under this Act the common carrier shall be deemed to have had knowledge of all acts of all its officers and agents : Provided, That the provisions of this Act shall not apply in any case of casualty or unavoid- able accident or the act of God nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen : Provided further, That the provisions of this Act shall not apply to the crews of wrecking or relief trains. Sec. 4. It shall be the duty of the Interstate Commerce Commission to execute and enforce the provisions of this Act and all powers granted to the Interstate Commerce Commission are hereby extended to it in the execution of this Act. Sec. 5. That this Act shall take effect and be in force one year after its passage. Approved, March 4, 1907, 11 :50 a. m. APPENDIX G. DECISIONS UNREPORTED (MARCH 23, 1909,) UNDER THE SAFETY APPLIANCE ACTS. [My thanks are due to Mr. Edward A. Moseley, Secretary of the Interstate Commerce Commission, for these decisions. The first two are taken from the pamphlet published by the Interstate Commerce Commission, April 1, 1907. The remainder are on separate sheets fur- nished me by Mr. Moseley.] UNITED STATES v. EL PASO AND SOUTHWESTERN RAILROAD COMPANY. (In the District Court of the Second Judicial District of the Territory of Arizona.) 1. Though the complaint for violation of the Federal safety appliance acts in this case does not allege that the defendant is a common carrier engaged in interstate commerce, it does allege that the de- fendant is a common carrier engaged in commerce by railroad among the several Territories of the United States, particularly the Territories of Arizona and New Mexico, and that is sufficient, as the interterritorial commerce therein alleged is equivalent, un- der the Safety-Appliance Act of 1903, to interstate commerce under the original act of 1893. 2. Where a coupler couples by impact, but cannot be uncoupled unless the employe goes between or over the cars, or around the end of the train, in order to reach the appliance on the connecting car., svich a coupling is defective and prohibited by law, as it makes it reasonably necessary for the employe to go between the ends of the cars to uncouple such a car. J. L. B. Alexander, United States Attorney, for the United States. Herring, Sorin & Elmwood and Hawkins & Franklin, for the defendant. (Decided January 30, 1901.) 525 526 FEDERAL SAFETY APPLIANCE ACT. DOAN Judge: This action was brought under the act of Congress known as the "safety-appliance act," approved March 2, 1893, as amended by an act approved April 1, 1896, and as amended by an act approved JMarch 2, 1903, contained re- spectively in the Twenty-seventh Statutes at Large, page 531, in the Twenty-ninth Statutes at Large, page 85, and in the Thirty-second Statutes at Large, page 943. The plaintiff alleged that the defendant "is a common carrier engaged in commerce by railroad among the several Territories of the United States, and particularly the Ter- ritories of Arizona and New Mexico," and then alleged that in violation of the said act as amended the "defendant on March 3, 1906, hauled over its line of railroad a certain car generally engaged in the movement of interstate traffic, when the coupling and uncoupling apparatus on the A end of said car was out of repair and inoperative, necessitating a man or men going between the ends of the cars to couple or uncouple them, and w^hen said car was not equipped with couplers coupling automatically by impact, and which could be uncoupled without the necessity of a man or men going between the ends of the cars, as required by section 2 of the said "safety-appliance act, as amended by section 1 of the act of March 2, 1903," and by reason of the violation of the said act the defendant was liable to the plaintiff in the sum of $100. The second and third causes of action were for similar acts in violation of the law alleged as to certain other cars hauled by the defendant on its said road, on or about the same date, and the fourth was for using at the same time on its line of railroad one locomotive for switching at its yards in Douglas, Ariz., cars containing interstate traffic. It was urged by the defendant that the ' ' safety-appliance act" was confined in its operations to common carriers en- gaged in interstate commerce by railroad, and that there APPENDIX G. 527 was no allegation in the complaint in this instance that the defendant was engaged in interstate commetce. Section 1 of the act of 1893 provides: "It shall be un- lawfnl for any common carrier engaged in interstate com- merce to use on its line," etc. Section 2 provides: It shall be unlawful for any such common carrier to haul, or to permit to be hauled or used on its line, any car used in moving inter- state traffic not equipped with couplers coupling automatically by im- pact, and which can be uncoupled without the necessity of a man going between the ends of the cars, etc. The act of March 2, 1903, provides in section 1 : That the provisions and requirements of the act . . . approved March 2, 1803, and amended April 1, 189(5, shall be held to apply to common carriers by railroad in the Territories and the District of Co- lumbia. The plaintiff in this case in each instance has alleged that the car alleged to have been handled in violation of the act was "a car generally used in the movement of interstate traffic," or "was engaged in moving traffic in and between the Territories of the United States," and although the com- plaint did not in so many words allege that the defendant was "a common carrier engaged in interstate commerce by railroad," it did allege that it was "a common carrier en- gaged in commerce by railroad among the several Territories of the United States, particularily the Territories of Arizona and New Mexico," which allegation, under the provisions of section 1 of the act of 1903, that declares that the "safety- appliance act" shall be held to apply to common carriers by railroad in the Territories and the District of Columbia, is sufficient. The interterritorial commerce therein alleged being equivalent under the act of 1903 to interstate com- merce under the original act of March 2, 1893. The violations of the act were established by the un- 528 PEDEEAL SAFETY APPLIANCE ACT. disputed testimony in the ease, except in the one instance where it was proven that the coupling appliances on one end of the car hauled were perfect, and that the coupling appliances on the other end of the car were such as would couple by impact; and and it was alleged by the defendant that although the coupling appliances on the end of the car complained of were so damaged, and thereby imperfect, that they could not be operated by a man without the necessity of his going between the cars, that when coupled to the ad- joining car on which the appliances were in perfect order the car could be uncoupled from the adjoining car without a man or men going in between the cars. The proof devel- oped that this car was coupled into the body of a train, and that if a brakeman was sent along the train to uncouple the car on the side of the train on which this coupling rod should be that the coupling rod on the adjoining car would naturally be on the other side of the train, and it presented a question (in the absence of proof on the part of the de- fendant that the adjoining car was furnished with a double arm or rod — that is, one extending on each side of the car, as is in some instances provided) whether the car so coupled that it could not be uncoupled on the side to Avhich the brakeman would naturally be sent to uncouple it without the necessity of a man going between the ears for the purpose of uncoupling, but that it could be uncoupled by operating the coupling rod on the adjoining car by the brakeman go- ing around the end of the train in order to reach it on the other side, or by his climbing up the car, crossing over the top and climbing down on the other side, was, in the con- templation of the law, one which "could be uncoupled with- out the necessity of a man going between the cars." It was contended by the defendant that in construing this statute we must take into eonsideratioh the fact that it is a penal statute, and therefore should be strictly con- strued, while the plaintiff insisted that it is a remedial APPENDIX G. 529 statute, and is enacted for the protection of the lives and limbs of the numerous railroad employees and therefore should be liberally construed. We feel justified in giving a sufficiently liberal construction to the language employed to enable the statute to conserve the ends evidently intended by the legislators, and while it may not be successfully main- tained that a car coupled as above renders it absolutely ne- cessary for a man to go between the ends of the cars to uncouple it, our knowledge of the manner in which freight trains of our interstate railroads are handled convinces us that it is reasonably necessary for the man to go between the ends of the cars to uncouple such a car. There is no assurance that the conditions of the track or the length of the train would be such at the time that the car might need to be uncoupled that the brakeman could go around the end of a train to the operating rod on the other side of the adjoining car and effect the uncoupling in the time al- lowed for such purpose, or that the condition of the car or the adjoining car would be such that he could climb over the top of the car and down the other side, even if sufficient time were allowed, without incurring fully as much danger to his person as by stepping in between the ends of the cars and effecting the uncoupling by hand. It is reasonably certain that in a great majority of cases, if not, in fact, in- variably, the brakeman, confronted with the necessity of adopting one of these three courses, w^ould go in between the cars and effect the uncoupling by hand. We consider that hauling a car with a coupling in such damaged or im- perfect condition as to present the necessity of this election to the employee is a violation of the act in the ordinary meaning of the words used, according to the true intent of the legislators. Judgment is rendered for the plaintiff in accordance with the prayer of the complaint in the four several causes of action. 530 FEDERAL SAFETY APPLIANCE ACT. UNITED STATES OF AMERICA v. EL PASO & SOUTH- WESTERN RAILROAD COMPANY AND EL PASO & SOUTHWESTERN RAILROAD COMPANY OF TEXAS. (U. S. District Court, Western District of Texas.) 1. The allegation that this action was brought "upon suggestion of the Attorney-General of the United States, at the request of the Inter- state Commerce Commission, and upon information furnished by said Commission," substantially complies with section 6 of the act of IMarch 2, 189.3, as amended, when it appears that such informa- tion was furnished to the Commission by inspectors of safety ap- pliances, who are acting under oath of office. 2. In stating a cause of action to recover a penalty under the Safety Appliance Acts, it is not necessary that there be an allegation that the acts complained of were intentionally and willfully done. 3. 'The highest degree of care in inspection and making such repairs as that inspection disclosed is not in any way a defense in an action brought to recover a penalty for violation of the Safety Appliance Act. Charles A. Boynton, United States Attorney, and Luther M. Walter, special assistoAit United States attorney, for the United States. Patterson, Buckler & Woodson and Hawkins & Franklin, for the defendants. The following pleading was filed by the defendants: Now come the defendants in the above-styled cause and say that they are common carriers engaged in commerce by railroad in the Territories of Arizona and New Mexico and in the State of Texas, and they except specially to the com- plaint of the plaintiff filed herein for the reason that the same is not verified as required by the provisions of section 6 of the act of March 2, 189.3, and amended by the act of April 1, 1896 (Chapter 87, 29 Stat. L., p. 85). 2d. Said defendants except specially to said complaint for the reason that it does not appear from the same that APPENDIX G. 531 duly verified information respecting the matters therein al- leged was ever filed with the United States District Attorney. 3rd. Defendants except specially to the first count in said complaint for the reason that it is not alleged that the acts therein complained of were intentionally or willfully done. 4th. And defendants except specially to the second count in said complaint contained for the reason that it is not alleged that the acts therein complained of were inten- tionally or willfully done. 5th. And defendants except specially to the third count in said complaint contained for the reason that it is not al- leged that the acts therein complained of were intentionally or willfully done. 6th. Defendants except specially to said complaint for the reason that the same does not show that it was filed in any way in accordance Math or under the provisions of section 6 of the act of March 2, 1893, and amended by the act of April 1, 1896 (chapter 87, 29 Stat. L., p. 85). 7th. Defendants except specially to said complaint for the reason that it does not appear from the same that this court has jurisdiction over this cause. 8th. And further answering, defendants say that they are not guilty of the wrongs and acts complained of in this cause, and they deny all and singular the allegations in the plaintiff^ 's complaint contained and of this they put them- selves upon the country. 9th. And for further answer in this behalf, these de- fendants say that if said grab irons, couplers, and appliances mentioned in the petition of the plaintiff were in anywise defective, insufficient, or not in conformity with the laws of the United States that then such facts were not within the knowledge of these defendants or either of them, nor could the same have been discovered by these defendants by the highest degree of care in inspection; that immediately before using the said cars mentioned in said petition, these 532 FEDERAL SAFETY APPLIANCE ACT. defendants gave the said cars a rigorous inspection and used the highest degree of care and diligence to discover any de- fective condition about the same, or any grab irons, couplers, or other appliances thereof, and that by the use of such care the}' did not and could not discover the same ; that if said cars were moved as alleged by plaintiff, which defend- ants deny, when any of the same, their appliances, couplers or grab irons were in a defective condition, that then the same was done by defendants inadvertently, without the knowledge of either of them, and without the consent of either of them, all of which these defendants are ready to verify. ]\Iaxey, District Judge, rendered the following judgment : On this the 8th day of April, A. D. 1907, came on for trial by regular call the above numbered and entitled cause, whereupon came the plaintiff and the defendants, by their respective attorneys, and came on to be heard the demurrers and special exceptions of defendants, and the court having heard and considered the same is of the opinion that the same are not well taken and that the law is not with the defendants in the matter of the exceptions; and it is there- fore ordered by the court that all of said exceptions be, and the same are hereby, overruled, to which action of the court the defendants excepted; and also came on to be heard and considered by the court the exception and demurrer filed by the plaintiff to the 9th paragraph of the defendants' answer herein, and the court having heard and considered the same is of the oiMuion that the same is well taken and that the law is with the plaintiff in the matter of said exception ; and it is therefore ordered by the court that the said exception be, and the same is hereby, sustained, to which ruling of the court the defendants excepted. Whereupon, upon motion of the district attorney, it is ordered by the court that this cause be, and the same is hereby, dismissed as to the defendant El Paso & Southwest- ern Railroad Company. APPENDIX G. 533 Whereupon both parties announce ready for trial, and a jury having been expressly waived by written stipulation filed herein, the matters of fact as well as of law were sub- mitted to the court, and the court, after hearing the plead- ings read, considering the evidence introduced and the argu- ment of counsel, is of the opinion, and so finds, that the de- fendant El Paso & Southwestern Kailroad Company of Texas, a corporation, is guilty of violations of the act of Congress Imown as the Safety Appliance Act, as set forth and charged in the three counts contained in plaintiff's petition, and is liable to plaintiff, the United States of America, in the sum of three hundred ($300) dollars. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, the United States of America, do have and recover of and from the defendant. El Paso & South- western Railroad Company of Texas, the sum of three hun- dred ($300) dollars, w^ith interest thereon from this date at the rate of six per cent, per annum, together with all costs in this behalf incurred and expended, for which execution may issue. To which judgment and ruling of the court the defend- ant El Paso & Southwestern Railroad Company of Texas in open court excepted. UNITED STATES v. WABASH RAILROAD COMPANY. [In the District Court of the United States for the Eastern District of Illinois.] [Affirmed as to third count and reversed as to first. 172 Fed. 864.] (Syllabus by the court.) 1. In an action brought to recover the penalty provided in section 6 of the Safety Appliance Act for violation of that statute it is no defense to show that defendant has used diligence or care of any degree to keep the cars in a reasonably safe condition. The statute commands a duty. The defendant must perform that duty, and it moves cars in a defective condition at its peril. 534 FEDERAL SAFETY APPLIANCE ACT. STATEMENT OF FACTS. The Interstate Commerce Commission lodged with the United States attorney information showing violations of the safety appliance law by the Wabash Railroad Company. The declaration was in four counts, each count charging a violation of section 2 of the statute, the allegation being that the couplers were out of repair and inoperative. At the trial defendant offered evidence tending to show diligence and care in keeping the cars in a reasonably safe condition. WiLLLVM E. Trautmann, United States attorney, George A. Crow, assistant United States attorney, and Ulysses Butler, special assistant United States attorney, for the United States. Bruce Campbell, for defendant. {November 19, 1907.) Francis jNI. Wright, District Judge (charging jury) : The defendant in this ease is charged by the United States with having violated what is commonly known as the Safety Appliance Act, an act of Congress with reference to that subject, in four counts. This law was enacted for the pur- pose of securing the safety of persons engaged in operating trains in interstate traffic, and section 2 provides, be- ing the section under which this declaration is framed, that — "On and after the 1st day of January, 1898, it shall be un- lawful for any common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." Now if you believe from the evidence in this case that the engine mentioned in the first count, I think it is, of the I APPENDIX G. 535 declaration was used in moving interstate traffic, and that it was not equipped with couplers coupling ' automatically by impact, and which could be uncoupled without the neces- sity of men going between the ends of the cars, then you will find the defendant guilty on that count. And so it is with reference to all the other three counts in the declaration. If you believe from the evidence in the case that the cars, one or all of them, were used in moving interstate traffic, and that they were not equipped with couplers coupling automatic- ally by impact, and which could be uncoupled without the necessity of men going between the ends of the cars, you will find the defendant guilty on all or any of the counts where you so believe. You have heard the testimony of the witnesses upon this subject. The witnesses for the Government have testified that the couplers were so out of order that they could not be coupled without a man going between the cars for that purpose. Now if you believe from the evidence that is true, and if you further believe from the evidence that the cars were used in moving interstate traffic, then you will find the defendant guilty. The testimony of the defendant's witnesses as to the inspection of the cars was submitted here for the purpose of tending to show, as far as in your judgment it does tend to show, that the defendant's cars were in good order. The mere fact that the defendant had used diligence or care to keep the cars in a reasonably safe condition is not a question before you. That is no defense to this suit. This statute is commanding, and requires the defendant at its peril to keep the couplers in such condition that the men whose business it is to couple them will not be required to go between the cars to do it ; and if you believe from all . the evidence in this case that they were so out of order that they could not be coupled without men going between the cars to do the coupling, then the defendant would be guilty under this declaration, and you will so find. That is about all the law and the evidence there is upon this subject in this case. 536 FEDERAL S.VPETY APPLIANCE ACT. You have heard the testimony of all the witnesses, and you are the judges of the credibility of all the witnesses and of what the evidence proves, and you must determine the case solely upon the evidence in the case. If you find the defend- ant guilty, you will say: "We, the jury, find the defendant guilty on the first, second, third and fourth counts of the declaration." You may find the defendant guilty on some of the counts and not guilty on the others. In that case the form of your verdict will be: "We, the jury, find the defend- ant guilty" on whatever number of counts you do find the defendant guilty, and "not guilty" on whatever you find the defendant not guilty. If you find the defendant not guilty, you will say: "We, the jury, find the defendant not guilty." There seems to be no dispute as to these cars, as to the fact that they were engaged in interstate commerce. That question is hardly necessary for you to consider or necessary for me to submit to you. There is no dispute about that. Interstate commerce, as you understand, of course, is traffic between one state and another state — shipments from one state to another state. That is interstate traffic. THE UNITED STATES v. PACIFIC COAST RAILWAY COMPANY. (In the District Court of the United States for the Southern District of California.) [173 Fed. 453. Affirmed, 173 Fed. 448.] (Syllabus by the court.) 1. Under the Federal Safety Appliance Acts, in order to recover the statutory penalty provided for in section 6 thereof, the United States must prove ( 1 ) that the defendant at the times mentioned in the conij>laint was a common carrier by railroad engaged in interstate commerce; (2) that it hauled, or permitted to be hauleJ over its line, tlxe locomotives, trains and cars mentioned in the APPENDIX G, 537 several counts of the complaint; (3) that the locomotives, trains and cars were not provided with the equipment required by the statute. 2. A shipment from a point without the State of California was con- signed to San Jose, in said State. Before the shipment reached California and while in transit, the consignee, by an agreement w^ith one of the carriers, changed the destination from San Jose to Ca- reaga. Held, That the traffic being carried from San Jose to Ca- reaga was interstate. Gulf, Colorado & Santa Fe v. Texas, 204 U. S., 403, distinguished. Oscar Lawler, United States attorney; Aloysius I. Mc- CoRMiCK, assistant United States attorney, and Roscoe F. Walter, special assistant United States attorney, for plaintiff. James A. Gibson and George W. Towle, for defendant. Decided June 13, 1908. Wellborn, District Judge (charging jury) : There being no conflict whatever in the evidence in this case, the parties have submitted motions respectively for peremptory instructions. Taking them up in the order in which they have been submitted, or in the order in which they were presented, the defendant asks the court to peremp- torily instruct the .jury to return a verdict in favor of the defendant on all the counts in the complaint. The plaintiff asks that the court peremptorily instruct the jury to return a verdict in its favor on all the counts of the complaint, ex- cepting the eleventh and twenty-third, being duplicates of the ninth and twenty-second counts. These two motions are the matters which call on me now for immediate disposition, and of course the disposition that I make of these motions will determine the case, because the jury will then be instructed to find or return a verdict in accordance with the conclusions which I announce. I may say, before taking up the merits of these motions, that it is obvious, not only to the court, but even to a casual 538 FEDERAL SAFETY APPLIANCE ACT, observer of the progress of this trial, that counsel both for the plaintiff and for the defendant have made their researches into the law of the case with great industry, and the presenta- tion of their respective views has been marked by uncommon ability. If I had no jury in the box and could take the case under advisement for the purpose of preparing an opinion, I should like to review these questions for the reasons which I have just indicated; but this is impracticable, and I shall not undertake to do any more than to announce my conclu- sions, with such reference to the law and the facts in the case as may make the announcement intelligible. The first Safety Appliance Act was passed in 1893, and this act as amended April 1, 1896, contains, among others, the following provisions, which are applicable to the ease at bar. The first section of the original act reads as follows : Be it enacted hy the Senate and House of Representatives of the United States of America, in Congress assembled. That from .ind after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine, in moving interstate traffic, not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it, so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring the brakeman to use the common hand brake for that purpose. I am reading these various provisions because I think it is well that the jury, as well as counsel, should understand the ruling I am going to make. The second section reads as follows : Sec. 2. That on and after the first day of January, eighteen hun- dred and ninety eight, it shall be unlawful for any such common car- rier to haul, or permit to be hauled or used on its line, any car used in moving interstate traffic not equipjjed with couplers coupling auto- matically by impact, and which can Ix' uncoupled without the necessity of men going between the ends of the cars. Section 6, as amended in 189G : That any such common carrier using any locomotive engine running any train, or hauling or permitting to 1m? hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a APPENDIX G. 539 penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States District Attorney in the District Court of the United States having jurisdiction in the locality where sucli violation shall have been committed; and it shall be the duty of sucli District Attorney to bring such suits, upon duly verified information being lodged with him of such violations hav- ing occurred, etc. The act was further amended IVIarch 2, 1903, and this last amendment provided, among other things, in section 1 of the act that the provisions and requirements of the act entitled "An act to promote the safety of employees and travelers upon railroads, by common carriers engaged in inter- state commerce, approved March 2, 1893, and amended April, 1896, shall be held to apply to all common carriers by rail- road in the Territories and in the District of Columbia, and shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type; and the pro- visions and requirements hereof, and of said acts, relating to train brakes, automatic couplers, grab irons, and the height of draw bars, shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad en- gaged in interstate commerce, and in the Territories and Dis- trict of Columbia, and to all other locomotives, tenders, cars, and similar vehicles, used in connection therewith, excepting those trains, cars, and locomotives exempted by the provisions of section 6 of said act of JNIarch 2, 1893, as amended by the act of April 1, 1896, or which are used upon street railways." I am of opinion that that part of the amendatory act of 1903 which provides, "and the provisions and require- ments hereof and the said act relating to train brakes, au- tomatic couplers, grab irons, and the height of drawbars, shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in inter- state commerce, and to all other locomotives, tenders, cars, and similar vehicles, used in connection therewith," broadens the original act of 1893 so as to make its requirements con- cerning train brakes, automatic couplers, grab irons, and the height of drawbars apply not only to trains, locomotives. 540 FEDERAL SAFETY APPLIANCE ACT. tenders, and cars employed in the movement of interstate traffic, but to all trains, locomotives, tenders, and cars used on any railroad engaged in interstate commerce. In other words, for the Government to recover under the amendatory act of 1903, it is not necessary, as it was under the original act of 1893, to show that the ear with the defective equip- ment was employed in interstate movement at the time this defect was discovered, but it is only necessary to show that said ear was hauled over the line or used by a railroad en- gaged in interstate commerce. TJ. S. v. Chicago, M. & St. P. Ey. Co., 149 Fed., 436. The case just cited is the case which was read by Judge Gibson, and which had not been called to my attention previously ; but the views which I have announced are in complete accord with the views expressed by Judge MePherson in the case which I have just cited. Unless the amendatory act is so construed, those parts of it last quoted are entirely without effect and useless. To further illustrate the effect of this amendatory act, I will read the following statement by a Member of the House of Representatives while that body had the act under consi- derations : Mb. WajSTGER: Mr. Speaker, the purpose of this act is to make more efficient the provisions of the act of March 2, 1893, for the promotion of the safety of employes upon railways. It has been held by some courts tliat the tender of a locomotive is not a car, and is tlierefore not affected by the provisions of the act. It has also been held that the act only applies to cars in interstate movement, and cars are very fre- quently, altliough generally designed for and used in the movement of interstate traffic, in use which is not interstate movement that requires the services of operatives upon them. Whenever an action for damages is brought by reason of the death or injury of a railroad emploj'e, of course every defense is made; and, althougli the car may not Ije equipped as directed by the act of Congress, yet tliat direction, as it stands, only applies when the car is being used in the movement of interstate com- merce; therefore the burden is on the plaintiff in every such action to establish tliat fact, and is frequently an impossibility, because fre- quently the injury or death does not happen when the car is so engaged in interstate commerce. It is, therefore, of the highest importance to make the act of Con- gress, as everybody supposed it would be, effective, so far as we have the power and autliority, for the protection of employes by requiring the equipment referred to in the act on all cars used on railroads en- gaged in interstate commerce. That is the purpose of the first section APPENDIX G. 541 of the bill. Tlie purpose of the second section is to require a more gen- eral and uniform use of air and air brakes, so as to have less need for the operation of hand brakes. The present act, as I recollect it, is that there must be sufficient air-braking apparatus used to enable the engi- neer to control the train. That, of course, differs, perhaps, in the judg- ment of every engineer. Therefore it seems appropriate that there should be a certain percentage of the cars of every train required to be operated by air brakes, whether it is actually essential for the proper control of the train or not. To the same effect, the Interstate Commerce Commission, in its Seventeenth Annual Report, page 84, after the act had become a law: The necessity of showing that a car was engaged in interstate com- merce was another difficulty in the way of enforcing the law. It was necessary to get at the billing showing destination of cars, and to prove in each case that the car complained of was actually moving or used in interstate commerce at the time its defect was discovered. The amendment in question has obviated this difficulty. The law now ap- plies to all equipment on the lines of carriers engaged in interstate commerce, without regard to the service in which it is used. I am of the opinion that under said acts as above ex- plained there were only three things which the Government must prove in order to recover: (1) That the defendant, at the times mentioned in the complaint, was a common carrier by railroad, engaged in interstate commerce; (2) That it hauled, or permitted to be hauled, over its lines the locomotives, trains, and cars mentioned in the several counts of the complaint; (3) That said trains, locomotives, and cars were not provided with the equipment required by said act. There is no controversy as to the exivStence of the second and third ingredients of the plaintiff's causes of action, nor is there any controversy that the defendant was and is a com- mon carrier by railroad. The only issue between the defend- ant and the plaintiff is as to whether or not the proof shows that it was engaged, at the times mentioned in the complaint, in interstate commerce. There is no conflict whatever in the evidence relating to 542 FEDERAL S.^ETY APPLIANCE ACT. this issue, and from such evidence, following the principles declared in United States v. Colorado Northwestern R. R. Co., 157 Fed., 321, some of which had been previously enunciated in the Daniel Ball case, 10 Wall., 557, I am satisfied that the defendant was engaged at the said times in interstate com- merce. The letter of January 25 of the consignor, the National Tube Company, to the general freight agent of the Southern Pacific Company, asking that the destination of the shipments therein named be changed on their arrival at the place to which they were originally consigned, and the direction con- tained in the letter or traingram, signed 'M. ]\I. Brewer," of date January 29, written more than a month before either of said shipments arrived at San Jose, and some time before they had even reached California, clearly distinguishes the case from Gulf, Colorado & Santa Fe R. R. Co. v. Texas, 204 U. S., 403. I may say here that of course the actual physical diversion of the shipments was not and could not have been made until the arrival of the cars at San Jose, or Los Angeles, or IMojave, whichever may have been the destination; but the agreement between the National Tube Company, the consignor, and the Southern Pacific Company, as evidenced by the letters which I have just referred to — and the South- ern Pacific Company was one of the carriers who were parties to the contract for the interstate shipment — this agreement betAveen the consignor and the Southern Pacific Company was consummated when the traingram was sent by the Southern Pacific Company pursuant to the request of the National Tube Company^ the consignor, to the local agent of the Southern Pacific Company at San Jose. After that order had been sent to the agent at San Jose it was as though the original contract had read that Careaga, or whatever was the point to which it was to be diverted, was the ultimate destination. In other words, the original contract was so changed as to substitute Careaga, or the other points on the defendant's local line, for the points on the Southern APPENDIX G. 543 Pacific given in the M^aj^bill as it was originally executed. I might say that there is another fact that adds some strength, probably, to this conclusion, although the conclusion would have been reached without it — that the testimony of Mr. Garrett, I think it is, showed that the National Tube Com- pany furnished and provided the local agent at San Jose with money to prepaj^ the transportation beyond that point to the new destination under the diversion order. Recurring now to the case of Gulf, Colorado & Santa Fe Railroad Company v. Texas, 204 U. S., 403, the court, at page 412, said, among other things : In other words, the transportation which was contracted for, and which was not changed by any act of the parties, was transportation of the corn from Hudson to Texarkana — that is, an interstate shipment. * * * Neither the Harroiin nor the Hardin company changed, or of- fered to change, the contract of sliipment or the place of delivery. * * * No new arrangement having been made for transportation, the coi-n was delivered to the Hardin Company at Texarkana. What- ever may have been the thought or purpose of the Hardin Company in respect to the further disposition of the corn was a matter immaterial, so far as the completed transportation was concerned. It is a fair inference from this quotation that if the original contract of shipment had been changed by the parties so as to substitute Goldthwaite for Texarkana, the decision of the court would have been different ; and I am of opinion that the changes of destination shown in the case at bar by the letters above mentioned are the situations which, it is to be inferred from the language of the Supreme Court in the case last cited, would have made the trans- portation there involved an interstate matter and, in my opinion, bring the case at bar fully within United States v. Colorado Northwestern R. R. Co., surpra. From the views above expressed as to the law of the case, there being no conflict in the evidence relating to the facts, it follows that the defendant's motion must be denied, and the plaintiff's motion for peremptory instructions must be allowed, and orders to that effect will be accordingly entered. 544 FEDERAL SAFETY APPLIANCE ACT. UNITED STATES v. WHEELING AND LAKE ERIE EAILROAD COMPANY. (In the District Court of the United States for the Northern District of Ohio.) [1G7 Fed. 198.] Deoided June 16, 1908. (Syllabus by the court.) 1. The Safety Appliance Act of March 2, 1903, amending the act of March 2, 1893, as amended April 1, 1896, is constitutional and valid. Employers' Liability cases (207 U. S. 463), distinguished. 2. All the cars used by a railroad engaged in interstate commerce in the natural course of their use are instrumentalities of interstate com- merce; whether they carry interstate traffic themselves or are hauled in a train which contains interstate traffic, such cars are impressed with an interstate character. 3. In order effectively to protect the employe engaged in handling a car loaded with interstate traffic. Congress lawfully may regulate the appliances used on every car upon which such employe is employed. 4. It is not necessary that the petition in an- action to recover the stat- utory penalty under the Safety Appliance Act allege that the de- fect in the car was due to any want of ordinary care upon the part of the defendant. {Railway Co. v. Taylor, Admx., 210 U. S. 281.) 5. If a car is one that is regularly used in the movement of interstate traffic, and is at the time involved in the movement of a train con- taining interstate traffic, the lading of the car is wholly immaterial. William L. Day, United States attorney ; Thomas H. Garry, assistant United States attorney; and Luther M. Walter, special assistant United States attorney, for the United States. Squire, Sanders & Dempsey, for defendant. OPINION ON DEMURRER TO PETITION. Tayler, D. J. : The petition in this case, in twenty-three causes of action, seeks to recover from the defendant penalties for alleged failures to equip certain cars with couplings and grab irons, as required by what is known as the safety appliance act. APPENDIX G. 545 The jurisdictional facts alleged in order to bring the cars referred to within the embrace of the Federal act are : 1. That the car was itself at the time used in interstate commerce, being loaded with some kind of freight originating outside of the State of Ohio, and being carried within it or being destined to some point outside of the State; or 2. That it was a car which, being one regularly used in the movement of interstate commerce, w^as, at the time of the violation, being hauled in a train containing interstate com- merce, one car in the train with it, as, for example, Illinois Central 35572, containing baled hay consigned to a point within the State of West Virginia. In the counts referred to by this second proposition some of the cars are described as being empty and some as being loaded, but it is not charged that the loaded cars contained interstate traffic. I see no distinction, so far as this case is concerned, between the two. It is objected — 1. That the act is unconstitutional under the rule laid down in the Employers' Liability cases, 207 U. S., 463. 2. That, assuming that the cars were originally provided with the safety appliances which the law requires, it does not appear that the condition in which they were at the times named in the petition respectively, was due to any want of ordinary care. 3. That in the case of empty cars, or cars not loaded with interstate commerce, it does not appear that they were, at the time of the existence of the defects, being used in inter- state commerce. These objections will be taken up in their order: The law was originally passed March 2, 1893, and, with an amendment or two later adopted and unimportant, so far as this question is concerned, an amendment was passed on the 2d of March, 1903, which provided that the act of 1893, with its amendments, should "be held to apply to common carriers by railroads in the territories and the District of 546 FEDERAL S.VFETY APPLIANCE ACT. Columbia, and shall apply in all cases whether or not the couplers brought together are of the same kind, make, or type," and "shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad en- gaged in interstate commerce." It is claimed that since the act of 1903 undertakes to make the act of 1893 apply to trains, locomotives, and so forth, used on any railroad engaged in interstate commerce, it extends the operation of the act to subjects over which Congress has no control, and that this is exactly the effect of the decision of the Supreme Court in the Employers' Liability cases. Many answers suggest themselves to this claim. If the act of 1903 had been incorporated in the original act of 1893, and if it be true that the scope which the act covered was larger than that which Congress had power to legislate upon, and in consequence of that, the act should be held unconsti- tutional because of the impossibility of separation of the unconstitutional part from the constitutional part, still the contention of counsel would not be effective in this case. We have here the act of 1893 in full force and effect, with its provisions in no wise diminished or curtailed by the act of 1903. That the act of 1903 is, as the Supreme Court of the United States declared in Johnson v. Railroad Companij, 196 U. S.. 1, affirmative and declaratory, and, in effect, only construes and applies the former act. Now, if the former act is construed and applied by a later act (which, of course, involves the proposition that it remains unrepealed) and the later act is unconstitutional, in that it undertakes to give the former act a wider application than Congress had power to give to it, by what sort of reasoning can it be contended that the former act falls to the ground because it has had plastered upon it by Congress an unconstitutional construc- tion and application? The mere statement of this proposi- tion carries with it its answer and exhibits its unreasonable- ness. But much more may be said in favor of the propriety of APPENDIX G, 547 this legislation, having in view the decision of the Supreme Court in the Employers' Liability cases. It is true that the Supreme Court in that ease held the Employers' Liability act unconstitutional, because it made the railroad company liable to any of its employes, without restricting the liability to those who were engaged in interstate commerce ; but a parity of reasoning would not reciuire that we should say the same thing of the Safety Appliance act because it refers to all cars used on any railroad engaged in interstate com- merce. It seems to me that, in the respect complained of, there is no analogy between the decision of the Supreme Court in the Employers' Liability cases and the theory of the defendant's counsel as to the constitutionality of the Safety Appliance act. An employe of a railroad company engaged in interstate commerce does not, merely because he is such employe, sustain the same relation to interstate com- merce as a car used on a railroad engaged in interstate com- merce sustains to interstate commerce on that road. Cer- tainly, the Federal Government owes no duty to, and has no authority over, an employe of a railroad which is engaged in interstate commerce, if the employe himself is not engaged in the work of interstate commerce. That employe is subject, in respect to his relations with the railroad company, to the laws of the State in which the service is performed. There is no reason why the power of the State should not be suffi- cient for his protection, or why the Federal Goverment should interfere with respect to that or any other matter relating to that employe in respect to his work with the railroad com- pany, so long as it does not relate to the interstate commerce of the company. But this is not true of a car used by a railroad engaged in interstate commerce. All of the cars used by a railroad engaged in interstate commerce, in the natural course of their use, are instrumentalities of interstate commerce; whether they carry interstate traffic themselves or are hauled in a train which contains interstate traffic the effect is the same. 548 FEDERAL SAPETY APPLL4.NCE ACT, They stand in a certain and important relation to that inter- state commerce over which Congress has control ; and it is quite apparent that Congress, in undertaking to determine the manner in which interstate commerce shall be carried on, and especially in making effective the useful and beneficent purpose of providing for the safety of employes, would necessarily have a regard for the cars which the interstate commerce railroad had in use. And thus, discovering a very marked and practical distinction between a car used by an interstate commerce railroad and a person in the em- ploy of an interstate commerce railroad, we see how one, in the nature of things, becomes properly the subject of Federal legislation while the other, depending upon the character of his w^ork, may or may not become properly the subject of Federal legislation. This proposition is amplified in the reply herein made to the third objection to the applicability of the act. After all, on this subject of the constitutionality of the act, it seems to me that that question has been fully answered by the determination of the Supreme Court in Johnson v. Railroad Company, supra, wherein it is declared that this act of 1903 only construes and applies the act of 1893, and does not add any new affirmative provision. As to the second objection, whatever may be the right of the railroad company to defend against the claim made in a suit of this kind by saying that the coupling became defective or the grabiron lost so recently before the time named in the petition as to make it impossible, in the exercise of ordinary care, to replace or repair, that is purely a matter of defense if it ever can be asserted at all. It can not be urged in sup- port of a demurrer to the cause of action. If it were not so, it would be practically impossible for proof to be made in any case of a violation of the law. There are approxi- mately 2,000,000 cars in use by railroads in this country, and if the contention referred to is sound, it would be necessary, in order to sustain a cause of action in cases under this act, that proof be made that the appliance was in a condition of APPENDIX G. 540 unrepair at one time, that it continued to be in that condition of unrepair or in a developing condition of greater unrepair up to another time, the lapse of the intervening time being so great as to show a want of ordinary care on the part of the railroad company. In the meantime the very thing to pre- vent which the law was passed might occur, to-wit, the injury of an employe. The practical administration of justice would be denied and the real enforcement of the law be impossible if the construction contended for was sound. But it has been held in several cases that even as a defense on the merits no degree of care, no absence of negligence, can excuse for the failure to perform a duty unqualifiedly imposed by statute. And in the recent case of Railway Company v. Taylor, Admx., decided May 18 of the present year by the Supreme Court, the court very pointedly lays the unqualified responsibility upon the railroad for such a condition of un- repair. As to the third objection. What shall we do in the case of a ear which is regularly used in the movement of interstate traffic but at the time when the defect is known to exist is itself not being used for carrying interstate commerce, but is being hauled in a train containing a car loaded with inter- state commerce? What is the purpose of the law? Here is a train which is engaged — at least part of it — in interstate commerce, and so long as that is true every car in the train is impressed, so far as the requirements of this act are con- cerned, with an interstate character. It is a part of the cur- rent. The interstate car can not move except with relation to the empty car. The empty car may at any moment be coupled to the interstate car. A brakeman engaged in per- forming some duty in respect to the interstate car may be compelled to pass over or use a grabiron on the empty car or couple the empty car to the interstate car. Endless con- fusion would arise if any distinction was made under such conditions between a ear loaded with interstate traffic and an empty car regularlj'^ used in the movement of interstate traffic, but at the time unloaded and coupled to another 550 FEDERAL SAFETY APPLIANCE ACT. car actually in nse in the movement of interstate traffic. Of course the same thing nuist be said of the loaded ear, whatever the character of the freight it carried, if it is a car regularly used in the movement of interstate traffic. It seems to me that from every point of view the objections raised to the several causes of action are not well grounded. The demurrer is overruled. U. S. V. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY. (In the District Court of the United States for tlie Fourth District of Arizona,) Decifhd July 11, IVOS. (Syllabus by the court.) 1. The height of drawbars of freight cars as required by the Federal Safety Appliance Act shall not be more than 34% inches nor less than 31i/{. inches, from the top of the rail, the rail being on the same level as the cars equipped with such drawbars. 2. In prosecutions to recover the penalty under said act the burden is on the Government to show by a clear preponderance of evidence t!ie facts as alleged in the petition. 3. A failure on tlie part of the inspectors for the railroad company to discover defects in the equijnnent of cars cannot excuse the com- pany from liability under the statute. 4. Tlie inspectors for the Government are not required to notify the employes of the railroad company of defects on cars. 5. Xotliing but inability on the part of th.e common carrier to comply with the requirements of the Safety Appliance statute will excuse its non-compliance. The question as to whether it is convenient for a repair to be made at a certain place does not arise. 6. If a drawbar of a car be pulled out en route it is the duty of the carrier to make the necessary repairs at the nearest point where such repair can be made, and the hauling of such car in such de- fective condition beyond this point is a violation of the law. 7. If for any cause a part of the coupling or uncoupling mechanism of a car be removed, broken, or parts being present and not connected, APPENDIX G. 551 thereby rendering it such that it can not bo operated without the necessity of a man going between the ends of the cars, then such car is not equipi>ed in compliance with the law. 8. The law requires that both ends of each car be equipped as required by the statute. 9. The statute applies to empty cars as well as to loaded cars. 10. In a prosecution to recover the penalty for the violation of tlie stat- ute within a Territory of the United States, it is not necessary to shoM' that the defendant is engaged in interstate commerce; neither is it necessary to show that the car itself is engaged in interstate traffic. 11. To constitute a compliance with the law it is not sufficient that the coupling or uncoupling apparatus may be operated with great ef- fort without going between the ends of the cars, but it must be in such condition that it can be operated by the use of reasonable effort. 12. Positive testimony is to be preferred to negative testimony in the absence of other testimony or evidence corroborating the one or the other. Joseph L. B. Alexander, United States attorney; Roscoe F. Walter, special assistant United States attorney, for the United States. Paul Burkes for defendant. INSTRUCTIONS TO JURY. Sloan, District Judge (charging jury) : This suit is brought under the provisions of the Congres- sional act of ]\Iarch 2, 1893, as amended by the law of 1896 and by the law of 1903, which act and the said amendments are known as the Safety Appliance acts. Under section 2 of the act it is made the duty of common carriers engaged in interstate commerce, and also common carriers within the Territories of Arizona and New Mexico, to equip their cars with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars. The act also provides that it shall be un- lawful for any such common carrier to use any freight car equipped with a drawbar which, measuring perpendicularly 552 FEDERAL SAFETY APPLIANCE ACT. from the level of the tops of the rails to the center of such drawbar, shall not be more than 34^^ inches in height or less than 311/. inches in height; it being assumed in such measurement that the rails are on the same level as the car equipped with such drawbar. It is further provided that any violation of either of the provisions of the statute which I have called your attention to renders such common carrier liable to a penalty of $100 for each and every such violation, to be recovered in a suit or suits brought by the United States in a court having jurisdiction under the act. The complaint in this case contains fifteen distinct counts or causes of action. The first and the tenth counts relate to alleged violations by defendant of the provision of law with reference to the height of drawbars, it being alleged in each of these counts that the defendant company used a freight car with a drawbar which was less than 311/2 inches in height, measured perpendicularly from the level of the tops of the rails to the center of such drawbar. Counts 2 to 9, inclusive, ■and 11 to 15, both inclusive, relate to alleged defects in the couplers with which the various cars named in the counts were equipped, it being charged that each was defective in that it could not be operated so as to uncouple the car to which it was attached without the necessity of a man or men going between the ends of such car and that to which it might be coupled. The burden is upon the plaintiff in this cause to show by a clear preponderance of the evidence that the defects in safety appliances alleged to have existed as set out in the complaint did actually exist and the existence of such defects must be established by a fair preponderance of the evidence. The burden is laid upon the defendant, under the statute, to discover defects in the appliances mentioned under the act, whenever an opportunity is fairly presented for the dis- covery of such defects. Any failure or omission on the part of the inspectors of the company to discover such defects, I APPENDIX G. 553 after such opportunity is presented, can not excuse the com- pany from liability under the statute. The inspectors for the Government are not required to notify the employes of the railroad company of existing de- fects previous to or at the time of movement of defective cars, though such inspectors previously discovered such de- fects. I charge you that the law requires a strict compliance on the part of common carriers with the provisions of the Safety Appliance act to which I have called your attention. Nothing but inability on the part of a common carrier to comply with the requirements of the act will excuse its non-compliance. I charge you further that in the case of a car which may have its drawbar pulled out en route, it is the duty of the common carrier to make the necessary repair at the nearest point where such repair can be made. It may haul such car to such nearest point and no farther, using such care and caution as may be needed to insure the highest degree of safety and security while being so hauled. The common carrier may not choose its place to make such repair, but must avail itself, for that purpose, of the nearest point where, by the exercise of diligence and foresight, the company may pre- pare to make such repair. Inasmuch as inability alone will excuse the common carrier from a literal compliance with the act, it is the duty of the common carrier to have the mate- rial and facilities on hand at each repair point which may be needed to make repairs of the kind necessary to comply with the requirements of the Safety Appliance acts. It is the duty of the common carrier to use reasonable foresight in providing material and facilities for such purpose. In such a case it is not a matter of convenience merely, but a question of ability on the part of the common carrier to comply with the act. In this case the jury is instructed that the defendant com- pany can not excuse, under the Safety Appliance act, the hauling of a car which was without its drawbar from Winslow 554 FEDERAL SAFETY APPLIANCE ACT. to some other point for repairs if it could have been within the power of the defendant company, had it exercised reason- able care and foresight, to have repaired it at Winslow, it being charged, as I have said before, with the duty of having on hand at said repair point the material and facilities needed for that purpose. It is a violation of law rendering the common carrier liable under the statute to use a car wdth the clevis pin of the chain connecting the lock block to the uncoupling lever broken or removed for any cause, when the effect would be to render the uncoupling mechanism inoperative without the necessity of a man going between the ends of the cars. If it appear that the coupler be present but the parts are not so connected that the coupler can be operated without the necessity of a man or men going between the ends of the cars, then it is not a compliance with the statute. You are also instructed that it is not sufficient that one end of each car be equipped as required by the statute, but both ends must be so equipped that the coupling or uncoup- ling mechanism of each ear may be operative in itself without requiring the manipulation of the device on the adjacent car to effect a coupling or uncoupling to or from such ad.jacent ear. It is not necessary that any car in question be a loaded car to come within the meaning of the statute. If the car is hauled in the defective condition, the statute is violated re- gardless of the fact whether the car be loaded or unloaded. Neither is it necessary, in the case of a prosecution to recover the penalty for a violation that occurs within this Territory, that the car be engaged in interstate tralRc. It is sufBcient under section 1 of the amendment of 1903, if the defective car b(^ hauled l)y a common carrier within the Territory, even though the carrier be not engaged in interstate commerce, provided the car does not come within the exceptions em- braced in section 6 of the original act as amended April 1, 1896, or is not used upon a street railway. APPENDIX G. 555 You are instructed that if the Government has clearly and satisfactorily shown by the evidence that the car, as alleged in the first count of the Grovernment 's petition, was equipped with a drawbar which, measured perpendicularly from the level of the tops of the rails to the center of such drawbar, was less than 31^ inches in height, as required by section 5 of the Federal Safety Appliance act, approved March 2, 1893, as amended April 1, 1896 and March 2, 1903, then you will find the defendant guilty on such count. And so it is with reference to count 10 of the Government's petition. You are also instructed that if the Government has clearly and satisfactorily shown by the evidence that the car, as alleged in count 2 of the Government's petition, was not equipped with couplers coupling automatically by impact and which could be uncoupled without the necessity of a man or men going between the ends of the cars, then you will find the defendant guilty on that count. And the same with re- spect to counts 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14. and 15 of the Government's petition. On the other hand, if you fail to find clearly and satis- factorily from the evidence that as to any of these counts there was a violation of the requirements of the statute, then as to such count or counts yon will find the defendant not guilty. The court instructs you that if you find from the evidence that the absence of the "keeper" did not destroy the auto- matic action of the coupler on cars AT96348, 96294, and 96260, as set out in the fifth, sixth, and seventh counts re- spectively of plaintiff's complaint, but that such couplers could by the use of reasonable effort have been uncoupled by use of the lever of their own mechanism without the necessity of a man going between the cars, notwithstanding the absence of the "keeper," then you must find for the de- fendant on the fifth, sixth, and seventh counts. In considering the testimony of the witnesses who have testified before you, you have a right to weigh, in making up 556 FEDERAL SAFETY APPLIANCE ACT. your judgment, the testimony of any witness, but in doing this you will not give either more or less weight to the testi- mony of any witness because of the fact that such witness testifies on behalf of the Government or because of the fact that such witness testifies on behalf of the railroad company. But you will give to the testimony of each witness that weight which, in your judgment, it is entitled to from all the facts and circumstances in the case. In this connection it is proper to state that positive testi- mony is to be preferred to negative testimony, other things being equal; that is to say, when a credible witness testifies to having observed a fact at a particular time and place and another equally credible witness testifies to having failed to observe the same fact with the same or equal opportunity to so observe such fact, the positive declaration is to be pre- ferred to the negative in the absence of other testimony or evidence corroborating the one or the other. You are instructed that if you believe, from a consideration of all of the testimony in the case, that any witness has willfully testified falsely as to any material fact, then you are at liberty to disregard the whole of his testimony, except in so far as the testimony of such witness may be corroborated by other credible evidence in the case. The court instructs you that by a preponderance of the evidence is not meant the testimony of the greater number of witnesses, but rather the greater weight of credible testimony as determined by the character of the testimony of the vari- ous witnesses and the respective means and opportunities such witnesses may have had of acquiring information and knowl- edge and of seeing or knowing and remembering that to which they testify, the probability of its truth, their interest, if any, whether as parties or witnesses in the result of the action, and also their manner of testifying, and every other fact which will enable you to determine the weight and credibility to be given to their testimony. If you find the defendant guilty, you will say: "We, the APPENDIX G. 557 jury, find the defendant guilty on the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth counts of the petition. ' ' You may find the defendant guilty on some of the counts and not guilty on the others. In that case the form of your verdict will be: "We, the jury, find the defendant guilty" on whatever number of counts you do find the defendant guilty, and "not guilty" on whatever you find the defendant not guilty. If you find the defendant not guilty, you will say: "We, the jury, find the defendant not guilty." Verdict of guilty on all counts. United States Circuit Court of Appeals, Seventh Circuit. No. 1475.— October term, A. D. 1908. BELT RAILWAY COMPANY OF CHICAGO, PLAIN- TIFF IN ERROR, V. UNITED STATES OF AMERICA, DEFENDANT IN ERROR. [168 Fed. 642.] In error to the District Court of the United States for the Northern District of Illinois, Eastern Divisiion. Decided February 3, 1909. A belt-line railway company, operating a line lying wholly within a city, county, or State, while moving a commodity originating at a point in one State and destined to a point in another State, is engaged in interstate commerce by railroad, and as such is within the Federal Safety Appliance Acts. William J. Henley, William L. Reed, and Francis Adams, Jr., for plaintiff in error. Edwin W. Sims, United States attorney; Harry A. Parkin, assistant United States attorney; and Philip J. Doherty and 558 FEDERAL SAFETY APPLIANCE ACT. Luther M. Walter, special assistant United States attorneys, for defendant in error. Before Grosscup, Baker and Seaman, Circuit Judges: OPINION OP THE COURT. Baker, Circuit Judge, delivered the opinion of the court : The writ is addressed to a judgment assessing a penalty against plaintiff in error for an alleged violation of the pro- visions of the Safety Appliance acts in relation to power brakes. 27 Stat. L. 531, 29 Stat. L. 85, 32 Stat. L. 943. Cer- tain questions relating to the purpose, scope, and validity of this legislation are considered in Wahash R. Co. v. U. S. and Elgin, etc.., E. Co. v. T. aS^., herewith decided. The only assignments presented and discussed by plaintiff in error are that the court erred in refusing to direct a ver- dict of not guilt.y, and in giving the following instruction : "The question therefore presents itself, and it' is a legal ques- tion, Was the Belt Company, at the time it moved this string of 42 freight cars, containing a ear originating in Illinois and destined to Wisconsin, engaged in interstate commerce? I charge you that when a commodity originating at a point in one State and destined to a point in another State is put aboard a ear, and that car begins to move, interstate commerce has begun, and that interstate commerce it continues to be until it reaches its destination. If. between the point of origin of this commodity and the point of destination of this commodity, the ear in which it is being vehicled from origin to destination passes over a line of track wholly within a city, within a county, or within a State, the railway company oper- ating that line of track while moving this commodity, so originating and destined from one point to another point, intrastate, is engaged in interstate commerce." Was there sufficient evidence to warrant the jury in finding Al'PENDIX G. 550 that in hauling the train in (question plaintiff in error as a common carrier was "engaged in interstate commerce by railroad ? ' ' The railroad tracks of plaintiff in error lie wholly within Cook County, 111. There are 21 miles of main line and about 90 miles of switching and transfer tracks. The main line con- stitutes a belt that intersects the trunk lines leading into Chicago. By leads and Ys direct physical connection with the trunk lines is maintained. Plaintiff in error's business consists in transporting cars between industries located along its line, betw^een industries and trunk lines, and between trunk lines. The first two kinds need not be noticed as the transportation here involved was between trunk lines. The train in question contained among others a car laden with lumber, and consigned from a point in Illinois on the Chicago & Eastern Illinois to a point in Wisconsin on the Chicago & Northwestern. This car was taken by the plaintiff in error from the tracks of the Eastern Illinois over the belt line and put on the tracks of the Northwestern. For services of this kind plaintiff in error makes arbitrary charges of so much a car, which are collected monthly from the railroad companies for which the services are rendered. In such operations plain- tiff in error has no dealings with the shippers and pays no attention to the class of traffic. Its relation to the traffic was stated by the general superintendent, as follows : ' ' The Belt Company acts practically as an agent for the trunk lines in the handling of cars from one connection to another through its yards." In United States v. Geddes, 131 Fed. Rep., 452, defendant as receiver was operating a narrow gauge railroad that lay wholly in Ohio. ' ' At Bellaire it connected with the Baltimore & Ohio road, in the sense that it received from the Baltimore & Ohio freight from other States marked for points on its line, and delivered to the Baltimore & Ohio freight from points on its line marked for other States, in the following manner: There was no interchange or common use of cars, 560 FEDERAL SAFETY APPLIANCE ACT. the gauges of the two roads being different. The cars of the defendant road were used only on its own line. But a trans- fer track ran from the main line of the Baltimore & Ohio to the terminal station of the defendant road, so that the freight cars of the two roads could be placed alongside adjoining platforms and the transfer of freight made by the use of trucks handled by the Baltimore & Ohio men. No through bills of lading for such freight were issued by either road, no through rate was fixed by mutual arrangement, and no conventional division of a through freight charge was made." The Circuit Court of Appeals for the Sixth Circuit decided that the narrow gauge cars in question were not subject to the Safety Appliance act, holding that a common carrier was not "engaged in interstate commerce by railroad" wathin the meaning of the Safety Appliance act unless, referring to the definition in the original interstate commerce act, it was "en- gaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water when both are used, under a common control, management, or ar- rangement for a continuous carriage or shipment," from one State to another. The equipment of a narrow gauge railroad w^hich lay wholly in Colorado and which w^as similarly en- deavoring to conduct a separate and independent business. was held by the Circuit Court of Appeals for the Eighth Circuit to be within the Safety Appliance act. TJ. 8. v. Colo- rado, etc., R. Co., 157 Fed. Rep., 321. Plaintiff in error argues the present case as if the judgment could not properly be affirmed without our adopting the de- cision in the eighth circuit as against that in the sixth. In our judgment the question presented to those courts is ex- cluded from our consideration by certain distinguishing and controlling facts. The narrow gauge track had no direct physical connection with the broad gauge tracks of the inter- state trunk lines, and so no cars from other States, laden w'ith goods from other States, were hauled on the local highway. The Belt Line physically connected its track with those of the APPENDIX G. 561 Eastern Illinois and of the Northwestern, so that a continuous highway across State lines was formed, on which interstate traffic, loaded on interstate cars, was moved from origin to destination without change of cars. The narrow gauge road, by limiting its bills of lading to points on its own line, en- deavored to escape being held a common carrier engaged in interstate transportation. The Belt Line, issuing no bills of lading because of having no dealings with the shipper or with anyone on his behalf, performing its gateway service on ac- count of and as agent of the trunk lines, made its track the track of its principals. Consequently the character of the transportation should be determined by considering the trans- portation as the act of such principals. Trunk-line yards are in some instances so related to each other that through cars can be transferred without the intervention of a go-between. We are of opinion that the transportation in question was the same in legal effect as if the Eastern Illinois by means of its own locomotive and track had put the through car on the Northwestern 's track. In this view there was evidence from which the inference of fact might warrantably be drawn by the jury that there was a common arrangement for a con- tinuous carriage over the Eastern Illinois and the North- western ; and so, with respect to the movement in question, plaintiff in error was engaged in interstate transportation. When the portion of the charge complained of is read in the light of the undisputed facts, we see no basis for saying that the substantial rights of plaintiff in error were injuri- ously affected. The judgment is affirmed. Seaman, Circuit Judge, dissenting: I can not concur in the affirmance of this judgment, as I believe the operation of the Belt Company described in the record is not within the meaning of the Safety Appliance act. It clearly appears that this company was an independent railroad within the city, engaged only in transferring cars 562 FEDERAL SAFETY APPLIANCE ACT. (loaded or unloaded) from the terminal of one trunk line in Chicago to that of another trunk line; that it had no part in the shipment of any commodities which were upon the cars, nor interest in shipping bills or rates charged, nor concern in their ultimate destination and delivery to consignee; that its only service involved herein was the transfer of cars over its owTi lines, from one terminal to the other in Chicago, when the cars were delivered to it by a trunk line to be so trans- ferred, for which service the Belt Company was paid by the trunk line an arbitrary rate per car, on monthly collections. In such service the Belt Company is neither chargeable with notice whether the service of the trunk lines in respect of the cars is interstate commerce or otherwise, nor concerned in such inquiry, as I believe. It M-as not "engaged in inter- state commerce," as defined in the interstate commerce act, and I am of opinion that the two acts are in pari materia, so that the terms of the Safety Appliance act are inapplicable to the service thus performed by the Belt Company, and the judgment should be reversed. THE UNITED STATES v. LEHIGH VALLEY RAIL- ROAD COMPANY. [160 Fed. 69G.] (Motion for new trial reported at 162 Fed. Rep. 410.) In the District Court of the LTnited States for the Eastern District of Pennsylvania. December Term, 1906. {Decided March 11, J 908.) 1. An action bronglit to recover the penalty provided for in the Safety Appliance Act is not a criminal case. 2. The (iovernment need not prove its case beyond a reasonable doubt; it is sufTlcient if it furnishes clear and satisfactory evidence of all the necessary facts. APPENDIX G. 563 The statute requires as to couplers tliat the apparatus on each end of every car shall be in operative condition. In order to constitute a violation of the Safety Appliance Act, the car must be moved in a defective condition. Where a car, which had been at rest at a station for a period of time, is taken out upon the road in a defective condition, the carrier is liable for the penalty, and it is wholly immaterial whether the de- fendant knew of the defect or could have ascertained its condition by the exercise of reasonable care ; in such a case the carrier must find the defect at its peril. STATEMENT OF FACTS. This is an action brought by the United States to recover the statutory penalty of $100 under the Safety Appliance act. Two inspectors of the Interstate Commerce Commission found Philadelphia & Reading car No. 46247, November 12, 1906, at Allentown, Pa., in the yard known as the East Penn Junction yard, with the lever disconnected from the lock pin or lock block on each end of the car. The car M'as first in- spected at 2 :50 p. m. ; it left East Penn Junction at 8 :30 p. m. for Cementon, Pa., a few miles away, and was found there the next day in the same defective condition. Defendant's employes testified that a defect had existed at East Penn Junction on the 12th, but defendant contended that, as the repairs were generally made when found, the car did not leave for Cementon in a defective condition. J. Whitaker Thompson, United States attorney; John G. Sivartley, assistant United States attorney ; Luther M. Walter, special assistant United States attorney, for plaintiff. J. Wilson Bayard, Esq., for the defendant. Hon. John B. McPherson, Judge (charging jury) : Gentlemen of the jury: The question that has been sub- mitted to you, the question of fact that has been argued to you, is one that has not appeared in the other cases that per- haps may have been tried in the hearing of some of you. The defendant contends here that the Government has not offered 564 FEDERAL SAFETY APPLIANCE ACT. sufficient evidence to satisfy you that this car was hauled in a defective condition from East Penn Junction to Cementon, to which the load which it carried was bound, and that is the question of fact for you to determine in this case. This Safety Appliance act, the particular section with which we are concerned, makes it unlawful for a common carrier, such as the Lehigh Valley Railroad Company, to haul or permit to be hauled or used on its line any car used in moving inter- state traffic not properly equipped with automatic couplers. In this case the question is whether or not this car was moved from East Penn Junction to Cementon by the Lehigh Valley Railroad Company in a condition that was not such as is pro- vided for by this statute, and the duty is upon the" Govern- ment to satisfy you upon that subject. The burden of proof rests upon the Government in this case to establish to you by clear and satisfactory testimony that that fact existed. It is not a criminal case. We are not trying an indictment. We are trying a suit for a penalty, a suit for a penalty of $100, for an alleged non-compliance with this Safety Appliance act, and the burden of proof rests upon the Government to make out its case by clear and satisfactory testimony. I repeat, the burden of proof is upon it, and the burden continues to be upon it throughout the case. It is not required to furnish evidence beyond a reasonable doubt, but it is required to fur- nish clear and satisfactory evidence of all the facts necessary to make out its case. The act requires couplers at both ends of the car that shall couple automatically by impact, and couplers that may be uncoupled without the necessity of going between the cars ; this requires that there shall be levers, either a lever going entirely across the end of the car, or a lever up- on one side, which operates the mechanism of the coupler so that it may be separated froan the other car without the neces- sity of anybody going between. And it is necessary, to com- ply with the statute, that the coupler at each end of the ear shall be in operative condition. That duty is imposed upon any carrier using a car that is engaged in interstate traffic. That particular point of time to which your attention is APPENDIX G. 565 directed is the 12th day of November, 1906, and the particular place is East Penn Junction in this State, and from there to Cementon, a few miles away, and the charge is that a par- ticular car was defectively equipped. That it was defectively equipped seems to be conceded, as I understand, by the de- fendant in this case ; that is, that one or both couplers were out of order. Testimony has been given by the defendant's witnesses to that effect, as I understand it, but the averment of the defendant is that that defect was remedied and that there is no evidence from which the jury may properly infer that the car was actually moved in a defective condition. It is necessary that the Government shall establish, as I have said to you, by clear and satisfactory evidence that the car Avas so moved, because it is quite clear that so* long as a car, no matter how defectively equipped it may be, remains at rest, it does no harm- and can not do any harm, and does not offend against the statute. It is when it is actually in motion and therefore capable of doing harm to the operatives upon the train that the act applies, and therefore it is necessary, and it is the vital question of fact in the case, to establish as to whether or not while this car was being moved it was in a defective condition. Therefore I submit those questions of fact to you for your determination. Did the Lehigh Valley Railroad transport or haul this car from East Penn Junction to Cementon, and if they did, during that period was it* de- fectively equipped? I have not heard any argument made to you with regard to the question of reasonable care and diligence. The question is, however, raised by one of the points that is presented to me by the defendant, and therefore I say to you in a word that the question of reasonable care and diligence that may have been exercised by the defendant is not a matter for your consideration. As I understand this statute, the railroad com- pany is bound to discover defects if they exist, under the circumstances as they have been offered to us upon this trial. I am not dealing with anything except the facts that are now before us. Here is a case in which this car has been shown to 566 FEDERAL S.U^^ETY APPLIANCE ACT. have been at rest at East Penn Junction for a number of hours, and therefore when there was an opportunity to inspect upon the part of the railroad company. Now% under such circumstances, my reading of the statute is that it imposes up- on the company the duty to find the defects if defects exist, and that it must find them at its peril. If its inspectors failed to find them, then the liability for the penalty exists if the car is afterwards moved without having the defects repaired. That, as I understand, is the case for your determination. If you are not satisfied from all the evidence in the case that the Government has by clear and satisfactory evidence made out that this car was hauled in a defective condition between East Penn Junction and Cementon, then you ought to find in favor of the defendant. If they have satisfied you that this car was so defective at the time when it left East Penn Junction that it could not be automatically coupled and could not be uncoupled without the necessity of somebody going between the cars to perform that operation, then your ver- dict ought to be in favor of the United States for the sum of $100. Verdict for the Government. THE UNITED STATES v. PHILADELPHIA AND READING RAILWAY COMPANY. [160 Fed. 696.] (Motion for new trial reported at 1(;2 Ycd. Rep. 405.) In the District Court of the United States for the Eastern District of Pennsylvania. December Term, 1906. Decided March tl, J908. 1. An action brouglit to recover tlie penalty provided for in the Safety Appliance Act is not a criminal case. 2. The Government need not prove its case beyond a reasonable doubt; it is suflicient if it furnishes clear and satisfactory evidence of all tlie necessarv facts. APPENDIX G. 567 3. The statute requires as to couplers that the apparatus on each end of every car shall be in operative condition. 4. In order to constitute a violation of the Saftey Appliance Act, the car must be moved in a defective condition. 5. Where a car, which had been at rest at a station for a period of time, is taken out upon the road in a defective condition, the car- rier is liable for the penalty, and it is wholly immaterial whether the defendant knew of the defect or could have ascertained its con- dition by the exercise of reasonable care; in such a case the carrier must find the defect at its peril. STATEMENT OP FACTS. This was an action brought by the United States to re- cover three penalties of $100 each alleged to have been incurred by the defendant in hauling on November 12. 1906, Lehigh Valley car No. 83759, November 13, 1906, Lehigh Valley car No. 69609, and on September 26, 1906, its own No. 49786, from Allentown, Pa., with the coupling and un- coupling apparatus on one end of each car in a defective condition, in that the lock pin or lock block was disconnected from the uncoupling lever. Two Government inspectors of safety appliances found these ears in the defendant's yard at Allentown and after at least half an hour's interval the defendant hauled the cars in the defective condition. The defendant offered evidence that in the ordinary course of its business it had inspectors whose duty it was to inspect cars moved by it and if any defects were found such defects were noted in an inspection book kept for that purpose; that it had examined these books and found no entry of any defect having been found or repaired. J. Whitaker Thompson, United States attorney; John C. SwARTLEY, assistant United States attorney; Luther M. Walter, special assistant United States attorney for plaintiff. James F. Campbell, esq., for defendant. Hon. John B. McPherson, Judge (charging jury) : Gentlemen of the jury: This is an action brought by the United States, as no doubt you understand, to recover the 568 FEDERAL SAFETY APPLIANCE ACT, sum of $300, being a penalty of $100 for the use by the defendant company of each of three cars, which it is said were defectively equipped in violation of the act of Congress which is ordinarily known as the Safety Appliance Act. There is only one portion of it to which your attention need be directed, and that is the second section of the act, which provides, in substance, that no common carrier may haul or permit to be hauled or used on its line any car used in mov- ing interstate traffic not equipped with couplers coupling automatically by impact and which can be uncoupled with- out the necessity of men going between the ends of the cars. The meaning of that section is clear enough. The direction of Congress is, that any common carrier, such as a railroad, must equip its cars so that there shall be at both ends a coupler which will couple automatically by impact when it comes in contact with another car, and which may be un- coupled also from the side without the necessity of a man going between the ends of the two cars in order to perform that operation. That requires that each car taken separately shall be complete, completely equipped; that is to say, it re- quires that the couplers at both ends shall be in good order. It is not sufficient, under this act of Congress, that one coupler should be in good order and the other should be de- fective, although it appears from the testimony in the case that under certain circumstances even if one of the couplers is defective the process of coupling may nevertheless take place, provided the coupler upon the car with which the de- fective car comes in contact is in good order. If the two ends that come together were both out of order, then the coupling could not take place automatically, but if one of them is in good order while the other is not, then, under cer- tain circumstances, the coupling may take place automatically just the same as though both cars were thoroughly equipped. But, however that may be, the act of Congress does not permit such a situation to exist. It requires that each car taken by itself shall have the couplers at both ends in good APPENDIX G. 569 order, so that at each end the coupler may perform its ser- vice in the manner directed by this statute — that is to say, automatically by the impact of the two cars. And it also requires that the couplers shall be in such order that the cars may be uncoupled without the necessity of somebody going between the cars ; that is done by the use of levers. In some instances the lever comes entirely across the ends of the car, so that at whichever side the brakeman or employee happens to be standing he may perform whatever operation is necessary for the purpose of uncoupling. On some of the cars, perhaps the most of them, as the testimony would seem to indicate, I believe it is only upon one side, and then, of course, they can only be used from that side, but neverthe- less they can be so used. That is the provision of the statute. Of course, you will see at once — perhaps you have seen already, if you have been thinking at all about the case — that some difficult questions might arise as to when common carriers might be liable, and it is very easy to conceive of situations in which it would be hard to hold them liable under the strict letter of the law. For example, suppose a car started from the point of shipment in perfectly good order, and then through no fault of the carrier something happened to the coupler while the journey was in progress. Of course, under the strict letter of the law every minute the car was in use after that time there would be a violation of the law; but, I say, that would present a hard case, and if the carrier, under the proper construction of this statute, is liable under such circumstances, of course, there is a certain hardship about the situation. But we have nothing to do with a case of that kind. That may safely be left to be dealt with when the time comes. I give you that as an illus- tration, and others might be easily thought of. We are dealing with the particular situation disclosed by the evi- dence, and the jury must confine itself to that, as I intend to do in what I have to say to you. Here is a case where a certain number of cars, constituting 570 FEDERAL SAFETY Al^PLIANCE ACT. a train used in interstate traffic— and about that matter there is no .controversy— are at rest for a certain length of time; in all cases for more than an hour, in some cases for, I think, several hours; but, at all events, in all of these three eases at rest for more than an hour, and therefore affording an opportunity for inspection for the discovery of defects in these automatic couplers. In a case like that I instruct you that it is the carrier's duty to find any defects that may exist, and if the carrier fails to find them, then the carrier is liable for the penalty imposed by the statute; because if the train is used afterwards with the coupler out of order, then, of course, under the precise letter of the statute, the carrier is using a coupler that can not be coupled automatic- ally by impact or can not be uncoupled without somebody going between the cars, or perhaps neither operation can be performed as the statute contemplates. In other words, the question of diligence or carefulness on the part of the carrier in inspecting the cars has nothing at all to do with the matter now before you. The obligation is laid upon the carrier by the statute to find, in effect, any defect that may exist, when it has, as it had under these circumstances, the opportunity to discover it; and if its inspectors do not dis- cover it, then the carrier is liable for those defects and for the penalty that is imposed for the use of the car having such defects. That leaves, therefore, for your consideration, in each of these three cases the question of fact whether these cars, or either of them, were defective. You have heard the two inspectors in the service of the Interstate Commerce Com- mission upon that point, and there is other testimony of- fered by the defendant carrier which would tend to show that they were mistaken, and you will have to determine what is the fact. They may, perhaps, have mistaken some other car for the one that is spoken of here, or they may not have discovered the things that they said they did dis- cover; instead of the couplers being out of order, they may APPENDIX G. 571 have been in order ; and those are questions of fact which I submit to the jury for their determination. There are three separate charges here, and it is in the power of the jury, as they may find the evidence to indicate, to find either that the carrier should pay a penalty of $300 or of $200 or of $100, or that it should pay nothing, accord- ing as they may find that one or more of these cars were defective or as they may find that they were all in the order contemplated by the statute. There is this further to be said : This is what is called a penal statute; that is to say, it is a statute that imposes a penalty. It is not a statute that makes a criminal prose- cution or requires a criminal joroseeution, or permits, in- deed, a criminal prosecution for the violation of its pro- visions, but it imposes a money penalty. The rules that apply, therefore, in the criminal court do not appl.V here. It is not necessary that the United States should prove its case beyond reasonable doubt. As you very well understand, that is the measure of proof that is required in a criminal case. It does not appty here. The United States has the burden of proof upon it in order to make out its case. It has the burden of proof from the beginning to the end of it. It never shifts. It is bound to make out its case, and it is bound to make it out by evidence that is clear and satis- factory to the jury. That is the obligation that is laid upon it. Not by evidence which is of that high degree which we describe when we say evidence beyond reasonable doubt, but it is bound to make it out by such evidence as is clear and satisfactory, and by that degree of proof to make out all the elements which go to constitute the charge. If the United States has failed to come up to that standard, then it has failed in this case as to one or more or all of these particular charges, because that obligation rests upon it. That, I believe, constitutes all the instructions that I need give you with regard to this case. They cover, so far as I can see, all the points upon which I have been asked 572 FEDERAL SAFETY APPLIANCE ACT. to give you specific instructions, and I therefore need not confuse you by reading them over and answering them specially. The jury rendered a verdict in favor of the United States for $300. UNITED STATES v. PENNSYLVANIA RAILROAD COMPANY. (Motion for new trial, reported at 162 Fed. Rep. 408.) (In the District Court of the United States for the Eastern District of Pennsylvania. ) December Term, 1906. Decided March 18, 1908. 1. An action brought to recover the penalty provided for in the Safety Appliance Act is not a criminal case. 2. The Government need not prove its case beyond a reasonable doubt; it is sufficient if it furnishes clear and satisfactory evidence of all the necessary facts. 3. The statute requires as to couplers that the apparatus on each end of every car shall be in operative condition. 4. In order to constitute a violation of the Safety Appliance Act, the car must be moved in a defective condition. 5. Where a car, vi'hich had been at rest at a station for a period of time, is taken out upon the road in a defective condition, the car- rier is liable for the penalty, and it is wholly immaterial whether the defendant knew of the defect or could have ascertained its con- dition by the exercise of reasonable care; in such a case the carrier must find the defect at its peril. STATEMENT OP FACTS. This is an action brought by the United States to re- cover a penalty of $100 on account of an alleged violation of the safety-appliance act. Inspectors of the Interstate Commerce Commission testified that defendant hauled Boston & Albany car No. 12485 from West Philadelphia when the lock set was dis- APPENDIX G. 573 connected from the lock block on one end of the car and hung loose on the lift chain. All the parts were present, but were not coupled together, so that the lever was in- operative and the car could not be uncoupled without a man going between the cars for that purpose. The defendant of- fered evidence that it had inspectors whose duty it was to examine and repair defects; that when defects were found an entry was made in the inspectors' book; that as to this particular car no entry of repairs or defects had been made. J. Whitaker Thompson, United States attorney; John C. SwARTLEY, assistant United States attorney; Luther M. Walter, special assistant United States attorney, for the plaintiff. tToHN Hampton Barnes, esq., for the defendant. McPherson, Judge, (charging jury). Gentlemen of the jury: Some of you, perhaps all of you, have already taken part in similar trials, but, at all events, you have listened to them, and it is almost super- fluous for me to. go over what I have already said two or three times. Nevertheless, I will say very briefly what ought to be said with reference to the present case. There is just one charge here against the Pennsylvania Railroad. It is charged with having out of order one safety appliance upon a car in its possession. It was not one of its own cars; it was a car belonging to the Boston & Albany Railroad ; nevertheless, that makes no difference. As you know, railroads are continually interchanging cars; and the act of Congress makes no difference between cars that are owned by a railroad and cars that come upon its system and are hauled by it over its rails. If a car is not in proper operative- condition, it is the duty of the railroad to refuse to receive it, as it has a perfect right to do. After receiving it, it is just as much 574 FEDERAL SAFETY APPLIANCE ACT. bound by its condition as if it were its own own car from the beginning. The question of fact here for your deter- mination, about which there is conflicting evidence, is the condition of this car. whether or not it was out of order, whether or not it was out of operative condition, and that is a question of fact that you must resolve. If the car was in order, if the car wais in such a condition that it complied with the statute, of course, there has been no offense com- mitted. The second section of this act under consideration requires that the cars shall be so fitted with safety appliances that when the two cars come together there shall be an automatic coupling, by the mere fact of their coming to- gether, the impact of their coming together, the coupling shall be done automatically, and it also requires that there shall be a device by which uncoupling may be performed without the necessity of sending a man between the cars to perform that operation or to assist in it. That is done necessarily through the use of a lever, sometimes of a lever that runs across the entire end, and sometimes of a lever that runs only halfway across, and is as has been testified to you, always upon the left-hand side of the car as one faces it. Either lever complies with the provision of the statute. Therefore, was this car in that condition? You have heard the testimony of the witnesses upon the stand, the two inspectors who are in the service of the Interstate Com- merce Commission, and have testified to you what they say they found. You have heard the testimony of the other witnesses with regard to inspection, such inspection as was made by the Pennsylvania Railroad Company, and from the testimony from both sides, taken together, you must de- termine whether this car was in operative condition as re- quired by the statute. I have just explained to you what is required. If it was in that condition, then, as a matter of course, the defendant has not committed any offense for which a penalty could be imposed. It is necessary that both APPENDIX G. 575 ends of every ear should be completely equipped with de- vices that are in operative condition. It is not enough that one end shall be in good order and the other end not in good order. Both ends, under the statute as I construe it, must be in good wor!ving condition. It is the duty of the United States in this suit also to satisfy you by clear and satisfactor}^ evidence that these devices, or one of them, were out of order. The burden of proof is upon the United States, and it rests upon it throughout the course of the trial. It is not bound to show to you beyond reasonable doubt, as would be the case if we were trying an indictment in a criminal case — if this defendant was here on a criminal charge. I say it is not necessary that the measure of proof should rise to that degree, beyond reasonable doubt, but it is neces- sary, this being an action for a penalty that the United States should take up the burden and carry it, showing by clear and satisfactory evidence that all the elements in this offense were present. If the testimony, therefore, is not of that quality, the United States has failed, and your verdict would have to be for the defendant. Let. me say also that there is no question in the ease for your consideration concerning the measure of care or diligence that the defendant may have exercised with re- gard to inspection. In my construction of the statute, that is not a matter which the act of Congress makes necessary for consideration. As I understand the law, Congress has required a common carrier engaged in interstate commerce to see that these devices are in order under conditions such as are here before us. I am not speaking now of accidents' that might happen to them while they were in the course of transportation, when it would be impossible for anybody to know that they were out of order or to repair them, but I am speaking of a condition that may exist while the cars are at rest and when an opportunity is afforded for the process inspection. That was the case here, according to the undisputed evidence. This car and the train of which 576 FEDERAL SAFETY APPLIANCE ACT. it was part lay at the Mantua yards for some hours — I do not know for how long exactly — the precise time is not im- portant, but an opportunity was afforded, at all events, for inspection. That being so, in ray construction of the statute, the duty rested upon the carrier to find any defect that existed, and if the defect was there and the carrier failed to find it, it would be liable to the penalty, even although it made an inspection and made it by careful men, who per- formed their duty according to the best of their ability. The fact that they failed to find it would, while perhaps not a fault in one sense, nevertheless expose the carrier to the penalty. So that the whole case depends upon what you find the question of fact to be. "Was this car out of operative condition at the time testified to by the witnesses? I repeat, the burden of proof is on the Government to show you by clear and satisfactory evidence that it was out of order at one or both ends, and if the Government has not so satisfied you, then your verdict must be for the defendant. If, however, it has satisfied you that this was out of order, that one or both ends, of this coupling device were out of order, then your verdict should be in favor of the United States for the sum of $100. The jury rendered a verdict in favor of the United States for $100. UNITED STATES v. TERMINAL RAILROAD ASSOCIA- TION OF ST. LOUIS. (In the District Court of the United States for the Eastern District of Missouri, Eastern Division.) Decided June 3, 1D08. (Syllabus by the court.) 1. An action brought to recover a penalty under the Safety Appliance Act is civil. APPENDIX G. 577 2. It makes no difference under the law whether the chains were broken actually in the links or were disconnected; they were in point of fact inoperative, and if the railroad company permitted the cars to be hauled while the couplers were inoperative, then under the statute it is guilty. The Interstate Commerce Commission lodged with the Uni- ted States attorney information showing four violations of the safety-appliance law by the Terminal Railroad Associa- tion of St. Louis. Defendant made general denial as to all the counts and offered evidence to show that the cars were equipped with automatic couplers, but the chains connecting the lock pins to the uncoupling levers were disconnected and needed only to be connected to make the appliance available. Henry W. Blodgett, United States attorney; Truman P. Young, assistant United Svates attorney, and Ulysses Butler, special assistant United States attorney, for the United States. Edwin W. Lee for defendant. David P. Dyer, District Judge (charging jury) : Gentlemen of the jury, this is a proceeding brought by the United States district attorney against the Terminal Railroad Association of St. Louis to recover the sum of $400. There are four counts in the complaint. It is a civil action, provided by statute for such cases. It is based upon section 2 of an act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. That act was approved March 2, 1893, and amended by an act of April 1, 1896. The first and second sections of the act are as follows : 578 FEDERAL SAFETY APPLIANCE ACT. That from ana after the first day of January, 1898, it shall be un- lawful for any common carrier engaged in interstate commerce by rail- road to use on its line any locomotive engine in moving interstate traf- fic not equipped with a power driving-wheel brake and appliances for operating the train-brake syst^'m, or to run any train in sucli traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive draAving such train can control its speed without requiring brakemen to use the common hand brake for that purpose. Section 2 of the act under which this complaint is made is avS f oHows : That on and after the first day of January, 1808, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with cotiplers coupling automatically by impact, and which can be uncoupled witliout the necessity of men going between the ends of the cars. Section 6 of the act provided: That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of tlie provisions of this act. shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States Dis- trict Attorney in the District Court of the United States having juris- diction in the locality where such violation shall have been committed. The fact is conceded that these cars were engaged in in- terstate traffic. The cars were destined to New York and Philadelphia, received here over some railroad from Kansas City. So there is no question about the cars being engaged in interstate traffic. Congress has seen proper to enact this statute, made for the purpose of protecting from injury the employees. As to the wisdom of the act you, nor I. have nothing to do. It is the law of the land. It is charged in the first count of this petition (and each of the other counts is the same, with the exception of the cars named in the respective counts) that on or about the 8th day of May. 1907. defendant hauled the said car with said interstate traffic over its line of railroad from St. Louis, within the State of Missouri, APPENDIX G. 579 within the jurisdiction of this court, when the coupling and uncoupling apparatus on the "A" end and the "B" end of such car was out of repair and inoperative, the chains connecting the lock pins or lock blocks with the uncoupling levers being broken on said ends of said car. The main charge here is that the cars were in a condition which made them inoperative under the provisions of this act, and I charge you that it makes no difference whether the chains were broken in fact in the links of the chain or were merely disconnected. It was the duty of the railroad com- pany and its employees to see that those chains were in condition so that they could be used as this act contemplates. Thej' should be in such condition that they could be used without necessitating a man going in between the cars. I fail to find any difference, under the provisions of this act, between a chain that happens to be broken in a link and a chain that is uncoupled and inoperative. You heard the testimony that was given here yesterday. One witness testified that some of these chains were broken and some were disconnected. Another witness testified that he did not discover the broken chains, but did discover that they were disconnected. The witnesses for the defendant testified that the chains were not broken but were all dis- connected. There is no dispute, therefore, that the chains were uncoupled; and it makes no difference under the law whether the chains were broken actually in the links or were disconnected ; they were, in point of fact, inoperative, and if the railroad company permitted them to be used while the}' were inoperative, then under this statute it is guilty. I therefore charge you that under all the evidence in this case the plaintiff is entitled to recover on each count of its complaint in the sum of $100, and the court instructs you xhat under the law and the evidence and the pleading you must return a verdict in favor of the plaintiff in the sum of $100 on each of the four counts of the complaint. 580 FEDERAL. SAFETY APPLIANCE ACT. THE UNITED STATES v. ATCHISON, TOPEKA & SANTA FE KAIL WAY COMPANY. (In the District Court of the United States for the Southern District of California.) (Syllabus by the court.) 1. The Federal Safety Appliance Act requires carriers subject to the act to find at their peril and repair defects in the safety appliances embraced within the act. If a carrier fails to find and repair such defects it is liable for the statutory penalty. 2. It is incumbent upon the Government to make out its case by clear and satisfactory evidence. Oscar Lawler, United States attorney ; Aloysius I. Mc- CoRMiCK, assistant United States attorney, and Roscoe P. Walter, special assistant United States attorney, for plaintiff. E. W. Camp, for defendant. Decided June 6, 1908. Wellborn. District Judge (charging jury) : Gentlemen of the jury: The circumstances of this case do not call for nor admit of any protracted or elaborate statement or explanation of legal principles, and I shall not needlessly consume time, therefore, in preparing written charges. Indeed, I think that the mere reading of the pro- visions of the safety-appliance act of Congress, on which the Government relies for recovery in this case, will enable you intelligently to perform your duties as jurors and pass upon the facts. I will suggest to you what those duties are, and indicate the correct method of their performance. The act of Congress in question seems to have been passed in 1893 — the amendment. The first section is as follows : APPENDIX G. 581 Be it enacted by the Senate and the House of Representatives — I will only read the pertinent portions of the section to you — Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive or engine, in moving inter- state traffic, not equipped with a power driving-wheel brake. Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul, or permit to be hauled, or used on its line, any car used in moving interstate traffic, not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars. Sec. 4. That from and after the first day of July, eighteen hundred and ninety-five, or until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for a railroad company to use any car in interstate commerce that is not provided with grab irons or hand- holds in the ends and sides of such car, for the security of the men in coupling and uncoupling cars. Sec. 6. That any such common carrier using any locomotive engine running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such vio- lation, to be recovered in a suit or suits to be brought by the United States District Attorney of any District Court of the United States having jurisdiction of the locality where such violation shall have been committed. It shall be the duty of said District Attorney to bring suits upon duly verified, etc. Those provisions that I have read are the pertinent pro- visions of the law. There is no controversy that the defendant, at the times mentioned in the complaint, was a common carrier engaged in interstate commerce by railroad, and that the engines and cars mentioned in said complaint were used in hauling and moving interstate traffic, and the only questions for you to determine are whether or not the appliances on the engines and cars mentioned in the complaint were out of order, as alleged in the complaint. Whether or not the defendant inspected said engines and cars, and was diligent and care- ful in inspecting them, is not a matter you need concern yourselves about. The act requires defects in the appliances to be found at the peril of the company, and if it fails to find them the company is responsible for the penalty. If 582 FEDERAL SAFETY APPLIANCE ACT. the Government has not made out its case by clear and satis- factor}^ evidence your verdict should be for the defendant. If, however, you are satisfied from the evidence that either of said engines or cars was not equipped with the appliances required by the acts of Congress to whichr I have called your attention, or that such appliances were defective and ino])erative, then such engine or car was out of order in that particular resi)eet, and your verdict on the count re- lating thereto should be for the Government. You can find for the plaintiff or defendant on any one or more or all of the counts, as the evidence seems to you to require. Verdict for plaintiff. UNITED STATES v. THE CINCINNATI, HAMILTON «& DAYTON RAILROAD COMPANY. (In the District Court of the United States for the Northern District of Ohio.) Decided June 2^, 1908. (Syllabus by the court.) Tlip Federal Safety Appliance Law lays an unqualified duty upon a railroad company subject to the act to keep its coupling devices in a certain condition {Railroad Company v. Taylor, Administratrix, 210 U. S. 281), and when an employe of such company deliberately puts such devices in another condition, which condition the law un- dertakes to prevent, then the company is required to respond under the penalty ff)r the unlawful act of its employe. WiLLLiM L. Day, United States attorney, John S. Pratt, assistant United States attorney, and Roscoe F. Walter, special assistant United States attorney, for the United States. Jullvn II. Tyler, for defendant. I APPENDIX G. 583 STATEMENT OF FACTS. The defendant company was charged with hauling upon its railroad its own engine No. 90 when it was not equipped in compliance with the Federal safety-appliance law, in that the uncoupling lever was missing from the "A" end of the engine. The defense was made that inasmuch as the un- coupling lever had been removed by the employees of the defendant company for some reason best known to them- selves and without the order or consent of the company, it should not be held to answer for such act of its employees, because the very object of the act under which this suit is brought is to secure the safety of such employees. U. S. V. C, H. & D. R. R. CO. OPINION. (On motion by plaintiff for judgment on the pleadings.) Tayler, District Judge (orally) : I suppose that the administration of this law must of ne- cessity be attended with a certain amount of strictness of construction, and, in many cases, of hardship. It is practical results v/hich the act seeks to accomplish. It seeks to insure the safety of employees, in so far as that may be accomplished by regulating coupling devices and grab-irons. It is per- fectly conceivable that in four cases out of five the condi- tion in which the grabiron or the coupling device is found may be due to the carelessness or w^illful act of one of the very class of employees whose safety is sought by the legis- lation. Where an act lays the unqualified duty upon a rail- road company to keep its coupling devices in a certain con- dition and one of its employees deliberately puts it in another condition, which is a condition that the law undertakes to prevent, then the corporation is required to respond, under this penalty, for the unlawful act of its employees. 584 FEDERAL SAFETY APPLIANCE ACT. I do not see how we can escape the rule of law which makes the corporation responsible for the acts of its em- ployees, because it is only through employees as its repre- sentatives that it can act at all. From the standpoint of practical administration of the law, it would be practically impossible to administer it if it should be held that it was a defense to a charge that the coupling devices were not in the condition which the law requires, or that a grabiron was in a condition that was unlawful, that such condition was due to the act of one of a class of employees for whose bene- fit and protection this legislation was enacted, and the cor- poration was therefore not liable. If that was true, the statute would be in many cases practically inoperative. If I catch the spirit of this law as that spirit has been declared, especially in this latest case decided by the Su- preme Court on the 18th of May (Eailroad Co. v. Taylor, admx.), then certainly it must be said that the fact that the condition in which the lever which ought to be attached to a coupling device is found, is due to the willful act of an employee, yet since th'6 result is the failure to perform an unqualified duty laid upon the railroad company by Congress, it must be said to be a violation of the law. It will be necessary to sustain the motion for judgment on the pleadings, and an exception will be noted. UNITED STATES v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY. (In the United States District Court for the Northern District of California.) [167 Fed. 696.] Decided December 1, 1908. (Syllabus approved by the court.) 1. If a carrier hauls over its line any cars which can not be coupled automatically by impact, either by rea.son of being improperly APPENDIX G. 585 equipped, or the equipment being out of order, or disconnected, or otherwise inoperative, the act is in violation of the Safety Appli- ance law. 2. The Safety Appliance statute applies to the coupler on each end of every car subject to the law, and it is wholly immaterial in what condition was the coupler on the adjacent car, or on any other car or cars, to which each car sued upon was or was to be coupled. 3. Carriers are required immediately to repair defects in cars caused during the time they are being hauled, if they can do so with the means and appliances at hand at the time and place, or when such condition should have been discovered by the exercise of reasonable care. If requisite means are not at hand, carriers have the right, without incurring the penalty of the law, to haul the defective car to the nearest repair point on their line. But if they haul such car from a repair point, they are liable for the stat- utory penalty. 4. It is the duty of the carrier, subject to the Safety Appliance Acts, to establish reasonable repair points along its line for the making of repairs of the kind necessary to comply with the law. At such repair points there should be the material and facilities to make all such repairs. Alfred P. Black, Assistant United States attorney, and Monroe C. List, special assistant United States attorney, for the United States. C. L. Brown and Horace Pillsbury, for the defendant. INSTRUCTIONS TO JURY. De Haven, District Judge (charging jury) : You are instructed that section 2 of the safety-appliance act imposes upon the defendant an unqualified duty to equip its cars with couplers coupling automatically by im- pact, and which can be uncoupled without the necessity of men going between the ends of the cars: and if the defend- ant hauled over its lines of railroad any cars which could not be so operated, either by reason of being improperly equipped, or by reason of the original equipment being out of order, or disconnected, or otherwise inoperative, your verdict should be for the Government as to each and every car so hauled. 586 FEDERAL SAFETY APPLIANCE ACT. You are instructed that section 2 of the safety-appliance act applies to the coupler on each end of every car subject to the law, and it is Avholly immaterial in what condition was the coupler on the adjacent car, or on any other car or cars, to which each car sued upon was or was to be coupled. The equipment on each end of every car must be in such condi- tion that whenever called upon for use it can be operated without the necessity of men going between the ends of the cars. You are instructed that in actions arising under the safety- appliance act the Government is only required to prove by a fair preponderance of the evidence the existence of the defects as set out in the complaint. If from the evidence you find that the cars, or either of them, described in the petition, or in some count thereof, were equipped with the requisite couplers and grab irons, and that they were in the condition required by the law when they Avere received by the defendant to be hauled over its line of railroad as stated, but during the time they were being so hauled the couplers or grab irons from any cause became injured or out of repair upon any of the cars so that they were not in an operative condition, then the defendant would be required to immediately repair said de- fects and put the appliances in operative condition if it could do so with the means and appliances at hand at the time and place when and where it discovered their defective and inoperative condition, or when such condition should have been discovered by the exercise of reasonable care on the part of its agents or servants charged with that duty. But if it did not at such time and place have the requisite means or appliances at hand to remedy such defect and put the couplers and grab irons in operative condition, then it would have the right, without incurring the penalty of the law, to haul such car or cars to the nearest repair point on its line where such defects could be repaired and the appli- ances put in operative condition. But if such defective or inoperative condition of the couplers and grab irons existed at a repair point on defendant's line or at a place where APPENDIX G. 587 such defects could have been remedied, then if it hauled said ears from such place in such condition it would do so at its peril and be liable for the statutory penalty for so hauling or using such car described in any count of the petition. You are instructed that it is the duty of a railroad com- pany, subject to the provisions of the safety appliance act, to establish reasonable repair points along its line of railway for the making of repairs of the kind necessary to comply with the law; that is to say, repair points at places where they are reasonably required ; that it is also the duty of such railroad company to have on hand at such repair points the material and facilities necessary to make all such repairs, and that such railway company must use reasonable fore- sight in providing material and facilities for such purpose; and if the jury believes that the defendant hauled any car defective as to safety appliances over its line of railroad from any such repair point, where by the exercise of rea- sonable diligence and foresight such repairs could have been made, your verdict should be for the Government as to each and every car so hauled. You are instructed that if the defendant hauled any car over its line of railroad from or through any point in a de- fective condition, it is wholly immaterial that the defendant had no shops, material, or facilities for repairing the defects at that place, if it can be shown that said car had started from a repair point upon the line ol defendant's railroad in the same defective condition, and where such repairs could have been made had the defendant exercised reasonable dili- gence and foresight in providing such repair point with the proper material and facilities for the making of all repairs necessary to comply with the safety appliance act, your ver- dict should be for the Government as to each and every car so hauled. Your verdict should be for the Government as to each and every car so hauled upon that state of facts. 588 FEDERAL SAFETY APPLIANCE ACT. (The jury returned a verdict for the United States on the second, fourth, fifth, and eighth causes of action, and not being able to agree as to the balance of the counts, was discharged. ) UNITED STATES v. NEVADA COUNTY NARROW GAUGE RAILROAD COMPANY. (In the District Court of the United States for the Northern District of California. ) [167 Fed. 695.] Decided November 28, 1908. (Syllabus by the court.) 1. In an action brought to recover the statutory penalty under the Safety Appliance Acts a preponderance of the evidence that the defective car was hauled as alleged is sufficient to charge the defendant. 2. If the coupling and uncoupling apparatus on a car is so constructed that in order to open the knuckle when preparing the coupler for use or in uncoupling the car it is reasonably necessary for a man to place part of his body, his arm, or his leg in a hazardous or dangerous position such car is not equipped as required by section 2 of the Safety Appliance Act. STATEMENTS OF FACTS. The Interstate Commerce Commission lodged with the United States attorney information showing violations of Safety Appliance Law by the Nevada County Narrow Gauge Railroad Company. The declaration was in two counts, each count charging a violation of section 2 of the statute, the allegation being that the couplers were out of repair and inoperative. Alfred P. Black, assistant United States attorney, and Monroe C. List, special assistant United States attorney for the United States. Fred Searls, for defendant. APPENDIX G. 589 INSTRUCTIONS TO JURY. DeHaven, District Judge (charging jury) : The statute under which this suit is being prosecuted makes it unlawful for any common carrier engaged in inter- state commerce "to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars." The complaint in this case charges the defendant with a violation of this statute, and the question is for you to de- termine ; it is a simple question of fact for you to determine. The jury is instructed that if it' believes from a prepon- derance of the evidence that the defendant hauled the ear, as alleged in the first count of plaintiff's petition, when the coupling and uncoupling apparatus on either end of said car was so constructed that in order to open the knuckle when preparing the coupler for use it was reasonably ne- cessary for a man to place part of his body, his arm, or his leg in a hazardous or dangerous position, then its verdict should be for the Government. You are instructed that if you believe from a preponder- ance of the evidence that the defendant hauled the car, as alleged in the first count of plaintiff's petition, when said car was not equipped with couplers coupling automatically by impact and which could be both coupled and uncoupled without the reasonable necessity of a man going between the end sills of said cars, then your verdict should be for the Government. There are two counts in this petition. The first one is the only one that is contested; the second has been admitted by the defendant — that is, there is no defense to it. The form of the verdict is: "We, the jury, find for the" 590 FEDERAL SAPETY APPLIxySTCE ACT. plaintiff or defendant, as you believe, on the first count of the petition, and for the plaintiff on the second count of the petition. Verdict for Government on both counts. UNITED STATES v. CHESAPEAKE AND OHIO RAILWAY. (In the District Covirt of the United States, Soutliern District of West Virginia.) , Decided December 2, 1908. 1. A suit for the penalty prescribed in section 6 of the federal safety appliance act of March 2, 1893, as amended April 1, 189G, as amended March 2, 1903, is a civil action, and in such suit to entitle the Government to recover it is necessary that tlie facts which constitute a violation of the act be proved by a preponder- ance of the evidence, and not beyond a reasonable doubt. 2. The statute requires that the coupler on each end of every car hauled in a train containing interstate commerce shall be in operative condition as required by the act, and this whether the car be loaded or empty. 3. In counting the cars in a train to ascertain the percentage of cars equipped with air appliances, as required by the act, the engine and tender are to be counted as separate and distinct cars. 4. If a railroad company subject to the act hauls a car or train in inter- state traffic not equipped as required by the statute it does so in violation of the law. Elliot Northcott, United States attorney; H. Delbert RuMMEL, assistant United States attorney; Roscoe F. Wal- ter, special assistant United States attorney, for plaintiff. SIMMS, Enslow, and Fitzpatrick for defendant. Keller, District Judge (charging jury) : Gentlemen of the jury, this is a civil action brought by the Government of the United States against the Chesapeake and Ohio Railway Company, under the provisions of what APPENDIX G. 591 are known as the "safety appliance acts," to recover pen- alties for the alleged violation of those acts, the declaration or petition containing 17 counts. The first two of which, however, allege in different terms the same violation, and the 5th and 6th of Avhieh allege in different terms the same violation; therefore before this case was submitted to you the Government withdrew from your consideration counts 1 and 5 and left the declaration consisting of 15 counts, which are numbered, respectively, from 2 to 4 and 6 to 17. There are 15 separate violations of the law charged here. Now, I have but very little to say to you, but I want to give you the legal principles so far as I think should govern your consideration of this case. First, I will say that, the action not being criminal, the Government is simply obliged to prove the facts which con- stitute a violation of this act by a preponderance of the evidence, and not, as in criminal actions, beyond all reason- able doubt. I also instruct you that upon the question of the safety appliances to wit, couplers upon cars moved by a railway engaged in interstate commerce, that the statute requires the coupler on each end of every car be in operative con- dition, so that a person need not go between the cars to couple or uncouple any two cars, no matter on which side of the train he is. It was in evidence in this case that the coupling device on the end of the car, joined to another, in certain instances were out of order, so that that particular coupler could not be operated, and although it may have been true that the coupling device on the other car attached to that could have been operated, it w^ould be from, the other side only of the train; and such a condition existing, was a violation of the terms of the act, for which if the car was being moved in a train carrying interstate commerce the railway company would be liable. I also instruct you that the loading of the car is immaterial. 592 FEDERAL SAFETY APPLIANCE ACT. It is immaterial whether it be empty or loaded, if it is in- volved in the movement of a train containing interstate traffic, and the Government in the preparation of its de- claration in one or more counts in which that question was involved was careful to allege in such counts that in the train of which this ear out of order was a part there was at least one car loaded with traffic consigned to points with- out the State of West Virginia. I have been asked to give you certain instructions on be- half of the defendant in the case, one of them being the instruction that I have already embodied in my charge to you, to the effect that it is necessary that the Government prove its case by a preponderance of the evidence. I was also asked to instruct you regarding the violations charged in the 2nd count and in the 6th count, that in fixing the number of cars in a train the engine and tender are to be counted as two separate and distinct cars. I think that is correct. The only effect of that would be in determining whether a sufficient proportion of ears were equipped with air. under the law as it was introduced in evidence to you. You will recall that in the act it was provided that the In- terstate Commerce Commission might from time to time determine what proportion of a train must be equipped with air brakes under the control of the engineer, the act at the time of its passage fixing 50 per cent, as the minimum proportion of ears to be so equipped; and later under this power of determination the Interstate Commerce Commis- sion, by resolution, raised that minimum to 75 per cent. It is alleged in count 2 and in count 6 that in the 2 .trains referred to in those counts this minimum of' cars operated by the engineer by air power was not reached. In other words, that in one train but 71 per cent, in place of 75 per cent, were so equipped, and the other one, I believe, less. Now, I think that is a correct interpretation of the law, that in determining the proportion of cars controlled by air you should count the engine and the tender as 2 of APPENDIX G. 593 the cars, they being, unless shown to be otherwise, equipped with air, because the engineer controls the air from the engine. However, according to my understanding of the testimony in this case, that would not affect the defendant upon these charges, because according to my recollection of the testi- mony, and you will no doubt recall it, the train referred to in count 2 is alleged to have been composed of 45 cars, exclusive of the engine and tender, of which 13 were not equipped with air so as to be under the control of the en- gineer. Now, adding to the 45 cars the 2— respectively, engine and tender — you have 47, and 75 per cent, of 47 would require that at least 35 cars, including the engine and tender, be so equipped as to be under the control of the engineer for air braking, which would leave 12 as the maxi- mum number that could be without such control. The proof in the case, as I recall it, was that there were 13 cars with- out such control, and if you find that to be the fact the statute was violated. As to the other train referred to in count 6, my recollection is that the percentage of cars equipped with air was smaller than in the one I have referred to. I have been asked to give you an instruction on behalf of the Government, and I do so accordingly: The court instructs the jury that if they believe from the evidence that the defendant company hauled the trains and cars as alleged in the declaration in the condition alleged in said declaration, then they shall find for the plaintiff on the counts, except 1 and 5, which have been withdrawn. In other words, the Government's evidence in this case, if believed by the jury, makes a case under the statute, and therefore, if you believe the evidence of the Government, it would be your duty to find on each count except the first and fifth. Verdict for Government. 594 FEDERAL SAFETY APPLIANCE ACT. UNITED STATES v. SOUTHERN PACIFIC COMPANY. (In the United States District Court for the Northern District of California.) [167 Fed. 699.] Decided December 'i, 1908. (Syllabus approved by the court.) 1. If a carrier hauls over its line any cars which can not be coupled automatically by impact, either by reason of being improperly equipped or the equipment being out of order or disconnected, or otherwise inoperative, the act is in violation of the safety-appli- ance law. 2. The safety-appliance statute applies to the coupler on each end of every car subject to the law, and it is wholly immaterial in what condition was the coupler on the adjacent car, or on any other car or cars, to which each car sued upon was or was to be coupled. 3. Carriers are required immediately to repair defects in cars caused during the time they are being hauled, if they can do so with the means and appliances at hand at the time and place, or when such condition should have been discovered by the exercise of reasonable care. If requisite means are not at hand, carriers have the right, witliout incurring the penalty of the law, to haul the defective car to the nearest repair point on their line. But if they haul such car from a repair point, they are liable for the statutory penalty. 4. It is the duty of the carrier subject to the safety-appliance acts to establish reasonable repair points along its line for the making of repairs of the kind necessary to comply with the law; at such repair points there should be the material and facilities to make all such repairs. 5. The railway company is under no obligation to receive from any other company cars defective as to safety appliances and when it does receive cars from another company at any point it must know at its peril that each car so received is equipped with the safety appliances required by law, and that such appliances are in good order and condition. 6. It is the use of a car in a defective condition that the law seeks to prevent, and not the length of the haul. 7. If an employee of a railway company deliberately puts coupling devices on a car being used in interstate tradic in a condition which the law undertakes to prevent, then the company is liabblc to respond under the penalty for the unlawful act of the employee. APPENDIX G. 595 Alfred P. Black, assistant United States attorney, and Monroe C. List, special assistant United States attorney for the United States. Charles P. Heggerty for the defendant. INSTRUCTIONS TO JURY. DeHaven, District Judge (charging jury) : You are required to return a verdict in each of these cases. The first one is 13757, and contains ten causes of action ; the second one is numbered 13760, and contains two causes of action. The first two causes of action stated in No. 13757 charge a violation of section 1 of what is known as the safety ap- pliance act. In reference to those two counts, I now in- struct you it will be your duty to return a verdict for the Government. The remainder of the counts in No. 13757 charge a violation of section 2 of the safety appliance act. And that you may understand precisely the questions of fact upon which you are called to pass, I will read this section of the law to you : "That from and after the first day of January, eighteen hundred and ninety-eight it shall be unlawful for any such common carrier" — that is, a common carrier engaged in interstate traffie — "to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." This section of the law applies to the coupler on each end of every car subject to the law, and it is wholly immaterial in what condition was the coupler on any adjacent car or on any car to which each car sued upon was or was to be coupled. The equipment on each end of every car must be in such condition that whenever called upon for use it can be operated without the necessity of men going between the ends of the cars. 596 FEDERAL SAFETY APPLIANCE ACT, The law also means that each car must be equipped with an uncoupling lever on each end thereof, by means of which such car can be at all times uncoupled from another car by a man standing at one end on the side of the car, and without the reasonable necessity of going between such car or any other car, or without going around the end of the train in which said car might be hauled, or without crawl- ing under or over said cars, in order to reach the uncoupling lever of the adjacent car. While the safety-appliance law does not ask a railway company to do the impossible, it does, nevertheless, place upon such company the responsibility of properly equip- ping its cars in the first instance, and the maintaining of such equipment in good operative condition at all times thereafter. Of course, if, while a car is being hauled be- tween repair stations, some defect occurs to its safety ap- pliances, such railway company must use the utmost care to discover and repair such defects, if the nature of the re- pairs will permit of their being made at that time and place. Should such defect be of a heavy nature only to be made at repair stations, then the company would have the right, without incurring the penalty of the law, to haul such car to the nearest place where such repairs can be made. In doing this, the company can not choose its place of making repairs, but must avail itself, for that purpose, of the nearest point where, by the exercise of diligence and fore- sight, it may prepare to make such repairs. And it is the duty of every railway company subject to this law to es- tablish reasonable repair points along its line of railroad for the making of all repairs necessary to comply with the law; that is, it is its duty to establish repair points at all places along the line of road where it is reasonably necessary that they should be established in order faithfully to comply with the law. Inasmuch as inability alone will not excuse a company from a literal compliance with the law, it is the duty of such company to have the material and facilities on hand at every repair point to make repairs of the kind APPENDIX G. 597 necessary to comply with the provisions of the safety-appli- ance act. And if a defect exists at a repair point, or at any place where such defect could have been repaired, and the company moves the car while in the defective condition, it does so at its peril, and it becomes then subject to the penalty of the law. The law is not satisfied by the exercise of reasonable care to this end; but the company must at its peril discover and repair all defects before removing a car from a repair point. A railway company is under no obligation to receive from any other company cars defective as to safety appliances, and when it does receive cars from another company at any point it must know at its peril that each car so received is equipped with the safety appliances required by law, and that such appliances are in good order and condition. The penalty under the safety-appliance act applies to every defective car hauled contrary to its provisions, whether or not each car was hauled separately or in a train together; and it matters not how far each car was hauled ; it is the use of the car in a defective condition that the law seeks to prevent and not the length of the haul. Now, as to the different counts: In the first and second counts of 13757 you are instructed to find for the plaintiff. The third count charges the hauling of C, B. & Q. car No. 61488 when the coupling and uncoupling apparatus was missing from the B end and when said car was chained to another car. If you 'believe that the defendant so hauled this car from Truckee in this condition, and that Truckee was a repair point along the line of the defendant company, your verdict should be for the Government. The fourth count charges the hauling of S. P. car No. 48602, when the knuckle was missing from the A end and when the car was chained to another car. You are instructed that the law lays an unqualified duty upon a railroad com- pany to keep its coupling devices in a certain prescribed con- dition, and if an employee of such company deliberately puts 598 FEDERAL SAFETY APPLIANCE ACT, sucli devices in another condition, which condition the law undertakes to prevent, then the company is liable to respond under the penalty for the unlawful act of the employee, and if you believe from the evidence that the knuckle was removed from this car for the purpose of chaining it to another car, and that the car Avas so hauled in interstate traffic in that condition, and in that condition it would be necessary for a man to pass between the end of that car and a;i adjacent car in order to couple and uncouple them, your verdict should be for the Government. The fifth count charges the hauling of B. & 0. car No. 57286, when the keeper or inner casting was broken on one end and the uncoupling lever hanging down on the coupler. If you believe that this uncoupling lever was in such con- dition that any reasonable effort would not operate the same, and that in order to uncouple this car from another car it would have been reasonably necessary for a man to go between the cars, and that in that condition the car was hauled over the line of defendant's road in interstate traffic, then your verdict should be for the Government on that count. The sixth count charges the hauling of C., M. & St. P. car No. 58960, when the bottom clevis pin was missing on the A end. If you believe that the car was in that condition, and that the absence of this pin rendered the uncoupling lever inoperative, and that in order to uncouple this car from another car it was reasonably necessary for a man to go between the ends of the cars, and that in that condition the car was hauled over the line of defendant's road in inter- state traffic, then your verdict should be for the Government. The seventh count refers to a "kinked" chain. If this car left TruckfM^ while the chain was so "kinked," and while in this condition the coupler was inoperative, requiring the rea- sonable necessity of a man to go between the cars to couple or uncouple them, your verdict should be for the Government. The eighth and ninth counts are similar to the fifth and seventh counts, respectively, and what I have said in regard to those, you can apply to these counts. The tenth and the last count in No. 13757 charges the use APPENDIX G. 599 of a locomotive engine when the coupler was missing from the A or front end. It is not necessarj^ that this end of the locomotive was used or was coupled to any car, that is, front end or A end; it is the use of the locomotive in a defective condition that the law seeks to prevent, and if you believe that this locomotive was used by the defendant upon its line of railroad in connection with other cars engaged in hauling interstate traffic, and not used for the purpose of taking it to the nearest point where it could be repaired, your verdict should be for the Government. Of course, if you find that it was only taken to Sparks, and find that that was the nearest place where it could be re- paired, and that it was only taken there for that purpose, then your verdict should be for the defendant on that count. The first and second counts, and the only counts, in case No. 13760. charge the hauling of two cars chained together. If you believe that these cars were delivered to the Southern Pacific Company in such a condition by another company, that is. if you believe they were delivered to them in such a condition as has been testified to by the witnesses for the Government, and you should find that the defendant in hauling interstate traffic used them on its train engaged in interstate traffic, your verdict should be for the Government. One carrier can not receive a defective car from another carrier and exccuse itself; it must discover such defect at its peril before it receives and hauls any such car in inter- state traffic. I need not say to you, but I will say to you, that you are the exclusive judges of the credibility of the different wit- nesses who have testified in your hearing; that is, you must determine for yourselves which witness or witnesses you will believe, and then after you have fixed that in your mind you are also the exclusive judges of what ultimate facts are shown by such testimony. In considering this testimony, positive testimony is to be preferred to negative testimony, other things being equal; 600 FEDERAL SATETY APPLIANCE ACT, that is to say, when a credible witness testifies as to the existence of a fact at a particular time and place and an- other equally credible witness testifies to having failed to observe such fact, the positive declaration is ordinarily to be preferred to the negative in the absence of other testi- mony or evidence corroborating the one or the other. Never- theless, that is a question for you solely in passing on the weight to be given to this positive and negative testimony. If, in your judgment, the testimony of the wntness who says that he did not see a thing is entitled to weight; that the circumstances surrounding him at that time, at the time he made the examination, were such that if the fact had existed he would have seen it. then as a matter of course you would be at liberty to find that the fact did not exist; that is simply a rule of common sense in weighing testimony. In regard to the burden of proof, the burden of proof is on the Government to establish by preponderance of evi- dence the facts charged in the different counts of the peti- tion. And by a preponderance of evidence is not meant the greater number of witnesses, but it means that evidence which to your mind is the most satisfactory and is entitled to the greatest weight. A Juror. I should like to ask a question : In taking that engine from Truckee to Sparks, is it a breaking of the law as interpreted by hitching it to a train, or does it have to go down alone? The Court. If Truckee was a repair point and a place where the engine ought to have been repaired, and it was attached to a train engaged in interstate traffic and taken to Sparks, that would be a violation of the law. But if Truckee was not a repair point, and the engine could not have been repaired at Truckee, and was simply takeji dowTi to Sparks for the purpose of repair, I should say that that would not be a violation of the statute. Another JuROR. I should like to ask a question in regard to the two cars at Richmond : Would those two cars be con- sidered as engaged in interstate traffic? APPENDIX G. 601 The Court. That is a question for the jury to determine from the evidence in this case. If they were attached to other cars engaged in interstate traffic, then they wouM be engaged in interstate traffic. Another Juror. If the engine referred to needed re- pairs, and could only be repaired at Sparks, but was used between Truckee and Sparks in the hauling of a train as far as that point, should we find for the Government? The Court. If the engine could not be repaired at Truckee, and the company, under the law I have laid down before you, was not required to be able to repair it there, and it was moved to Sparks for the purpose of being re- paired, I should say that the mere fact that it was attached to an interstate traffic train would not render the company liable if the main purpose in removing was to repair it. (The jury returned the following verdict: In case 13760, for the United States; in case 13757, for the United States on the 1st, 2d, 3d, 4th, 5th, 6th, 7th, 8th, and 9th causes of action set forth in the complaint; and for the defendant on count 10.) UNITED STATES v. BOSTON & MAINE RAILROAD COMPANY. (In the District Court of the United States for the District of Massachusetts.) [IflS Fed. 148.] Decided January 5, 1909. (Syllabus by the court.) 1. Section 4 of the safety appliance act requires secure grab-irons or handholds at those points in the end of each car where they are reasonably necessary in order to afford to men coupling and un- coupling cars greater security than would be afforded them in the absence of any grab-iron or handhold at that point or of any appli- ance affording equal security with a grab-iron or handhold. 602 FEDER.1L SAFETY APPLIANCE ACT. 2. If at any place in the end of a car there is not a grab-iron or hand- hold, properly speaking, but some other appliance, such as a ladder or brake lever, which afforded equal security with a grab-iron or a liandhold at tliat point, the Federal safety appliance law so far as grab-iron or handhold at that point is concerned has not been vio- lated. Having something there which performs all. the functions of a gi-ab-iron or handhold is just the same thing as having what is properly called a grab-iron or handhold at that point. 3. Unless the Government satisfies a jury by a preponderance- of the evidence that there was no grab-iron or handhold on the car where there should have been one, the jury should find for the railroad company. 4. A man engaged in connecting or disconnecting the air hose between the cars is engaged in coupling or uncoupling cars within the mean- ing of the safety appliance act, if it is necessary for him to connect or disconnect that hose in order to connect or disconnect the cars. 5. Where a car is not properly provided with grab-iron on a given day, and the train stops for a certain time and then goes on again, there are not two violations of the law, but only one, because the car is all the time being moved in the same train. It makes no difference that it is being so moved on two different days. G. A "train" is one aggregation of cars drawn by the same engine, but if the engine is changed then there is a different train. William H. Garland, assistant United States attorney, and Ppiillip J. Doherty, special assistant United States attorney, for the United States. Charles S. Pierce, for defendant. instructions to jury. Dodge, District Judge (charging jury) : The statute which Ave are considering in this case is a statute passed by Congress under the power which is in- trusted to Congress by the Constitution to regulate com- merce between the several States, Congress makes this law in regulation of interstate commerce; it has the power to make sueh regulations. If we were dealing here Avith a rail- road or a train Avhich Avas not engaged in interstate com- APPENDIX G. G03 merce at all, this statute would not apply. It does not seem to be disputed in this case that the defendant railroad, and the car with which you are concerned, were both en- gaged in interstate commerce, and therefore were subject to the provisions of the statute. The defendant railroad is charged in the declaration which the Government has filed against it with five different violations of the statute. It is for the jury to say as to each of those violations charged whether the defendant has committed it or not. As to three of the violations charged, while the jury is still to say whether this defendant has committed them or not, they are saved the trouble of deciding any disputed questions of fact, as this case goes to them. As to the violation of the statute charged in the second count of the declaration, the defendant admits that it has been committed, and that the jury may find for the plaintiff upon the count. The same as to the third count of the declaration, the jury are to find for the plaintiff also on that count by consent of the defendant. As to the fourth count of the declaration, the court has ruled that the evidence is not sufficient to warrant a verdict for the plaintiff, and the jury therefore will find for the defendant as to that count by direction of the court. You are aware, gentlemen, that in all cases tried before you, questions of law are for the court and questions of fact are for the jury. The question presented here on the fourth count of the declaration is an example of a question of law. The court takes upon itself the responsibility of directing the jury to find for the defendant on that count. In this instance, and in all other instances where either party thinks that the court has decided the question wrongly, they have a remedy by appeal. They may go to the Circuit Court of Appeals within this circuit and have that court determine whether this court has rightly decided the ques- tion or not. But it is for you to follow the direction of this court for the time being, in order that the question may be 60-4 FEBERAL SAFETY APPLIANCE ACT. properly presented on appeal. Therefore although your verdict as to the fourth count is by direction of the court a finding for the defendant, it is a verdict of which the court takes the entire responsibility. Now, gentlemen, I come to the two counts which are sub- mitted to you for your consideration. They both relate to the same car — a car No. 24089, a car marked "New York, New Haven & Hartford Railroad," a box car — and the Government charges as to that car, while being hauled in a train from Springfield to the Brightwood yard, that on September 19, 1907, it was not provided with a grab-iron or handhold such as the law requires. And in the fifth count, as to the same car, the Government charges that on September 20, 1907, while being moved from the Brightwood yard northerly, it was not provided with a grab-iron or handhold such as the law requires. It is not disputed, as I have stated, that this car was being used in interstate commerce at these times. Now, the question for you to decide is: Did that car, or did it not, have on it grab-irons or handholds such as the statute requires that it should have while it was being moved by the railroad in interstate commerce? I will read to you once more the language of the section of the statute with which we are concerned : "From and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars." There is no question made either on September 19 or September 20 aliout the sides of this car. We are concerned only with the ends. Now, taking that section as it stands, and giving due weight to the language in Avhich the require- ments are expressed, we have to consider just what they mean as applied to the question arising in this ease, and I APPENDIX G. 605 shall instruct you, gentlemen, that section 4 requires secure grab-irons or handholds at those points in the end of each car where they are reasonably necessary in order to afford to men coupling or uncoupling cars greater security than would be afforded them in the absence of any grab-iron or handhold at that point or of any appliance affording equal security with a grab-iron or handhold. If at any place in the end of this car there was not a grab-iron or handhold, properly speaking, but some other appliance, such as a ladder or brake lever, or whatever else you please, which afforded equal security with a grab-iron or a handhold at that point, then I shall instruct you that the law has not been violated so far as a grab-iron or handhold at that point is concerned. Having something there which performs all the functions of a grab-iron or a handhold is just the same thing as having what is properly called a grab-iron or a handhold at that point. It may not be possible to say that a coupling lever or a ladder is a grab-iron or a handhold, but if it affords the same security to a man who may need to use one that a grab-iron or a handhold, properly speaking, would afford, then, in my judgment, the statute has not been violated. The question of fact, therefore, for you is: Are you satis- fied by a preponderance of the evidence that there was any- w^here in the end of this car a grab-iron or a handhold want- ing where it should have been according to the test which I have given you; that is, where a grab-iron or a handhold would be reasonably necessary in order to afford to men coupling or uncoupling cars greater security than would be afforded them in the absence of any grab-iron or handhold at that point? Now, that question you are to determine by a prepon- derance of the evidence here. You have listened to the evi- dence of the two inspectors of the Interstate Commerce Commission, w'ho tell you that they examined this car on the two days referred to, and they described to you pretty fully what they found on the end of the car* in question, and 606 FEDERAL SAFETY APPLIANCE ACT. they tell you that at a certain place there was no grab-iron or handhold. Now, on the other hand, you have the evidence introduced by the defendant railroad, which may induce you to think that the presence of a grab-iron or a handhold where the in- spectors have said that one was absent would make no dif- ference, so far as affording greater security to men is con- cerned. You are to be satisfied by the Government in this case by a preponderance of the evidence that there was no grab- iron or handhold where there should have been one. If you are so satisfied, you should find for the plaintiff, for the Government in this case. Unless the Government has so satis- fied you by a preponderance of the evidence, you should find for the defendant. Now, you are to remember in this case that you are to decide it according to a preponderance of the evidence. In all the other cases to which you have listened here and which, as I recall it, have been criminal cases, I have in- structed you that the Government, in order to convict, must prove its case beyond a reasonable doubt. This not being a criminal case, according to my view, the same rule does not prevail. A preponderance of the evidence in this case is sufficient; and what does that mean? It means that after balancing and considering the evidence on the one side and on the other you are not left in doubt, but that you find that the evidence for the Government outweighs the evi- dence brought here to meet it. If your minds after weighing and considering the evidence on both sides are left in doubt, if they are left equally balanced on the question, there is no preponderance of the evidence; and in that event, as I have told you, your verdict should be for the defendant. It is necessary, in order to farid a verdict for the plaintiff, that the evidence for the Government should outweigh that for the defendant. I have stated to you that grab-irons or handholds are re- quired by the statute to be at such points in the end ol; I APPENDIX G. 607 this car where they are reasonably necessary in order to afford greater security to men in coupling or uncoupling cars. Something has been said here about men connecting or disconnecting the air hose with which the air brakes are operated, and the question has been raised, is a man between the cars simply to connect or disconnect air hose a man engaged in coupling and uncoupling cars within the mean- ing of the statute? Now, on that point I instruct you that a man engaged in connecting or disconnecting the air hose between the cars is engaged in coupling or uncoupling cars within the meaning of the statute if it is necessary for him to connect or disconnect that hose in order to connect or disconnect the cars. The Government claims here that it has proved to you by a preponderance of the evidence not only one violation of the statute, but two. Now, on that point, gentlemen, you will consider whether or not this car. in the first place, was un- provided vrith grab-irons or handholds, as it should have been, and. in the second place, whether it was moved by this railroad in more than one train. Let us suppose that you have found that that car was on a given day not properly provided with grab-irons and handholds as the statute re- quires. Let us suppose that that car was at the time being moved in a train. Let us suppose that that train stopped for some purpose, no matter what, for a while, and. after having so stopped for a certain time. stRrted up and went on again. Now, in a supposed case like that, my instruction to you would be that there were not two violations of the law, but only one, because the car was all the time being moved in the same train. I should instruct you. gentlemen, that so long as the ear is being all the time moved in the same train, it makes no difference that it is being so moved on two different days; that so long as the ear continues be- ing moved by the railroad on the same train it makes no difference that September 19 has run out and September 20 has come in; that that does not make two distinct viola- tions of the statute, but the movement of the car being, 608 FEDERAL SAFETY APPLIANCE AGT. though on those two different days, all the time in one train, there has only been one violation of the statute. You will consider upon the evidence to which you have listened whether this car has been moved in more than one train. If you so jfind, it will be proper, provided you have been satisfied by a preponderance of the evidence that it was being so moved without the grab-irons and handholds which the law requires, to find for the plaintiff both on the first count and on the fifth count. If, on the other hand, you are not satisfied by a preponderance of the evidence that the car was moved in two trains, but was only so moved in one, that both on September 19 and on September 20 the car was continued all the time in one train, you should then find for the plaintiff only on one of those counts, either the first or the fifth, but you should not find for the plaintiff on both of them. Is there anything else which counsel desire me to speak to the jury about? [Counsel confer with the court at the bench.] The Court. In regard to what makes a train, Mr. Foreman and gentlemen, by "train" I understand one aggregation of cars drawn by the same engine, and if the engine is changed, I understand there is a different train. Verdict for Government, four counts. UNITED STATES v. BALTIMORE & OHIO RAILROAD COMPANY. . ( In the District Court of the United States for the Northern District of West Virginia.) Decided January 18, 1909. (Syllabus by the court.) 1. The federal safety-appliance act makes no exception and places no limitations upon the duty of a railroad company to equip its cars with the prescribed safety appliances. APPENDIX G. 609 2. It is the duty of a common carrier subject to the law to use at all times reasonable care to discover and repair all defects to its equip- ment; but if a defect exists at a repair point, or at any place where such defect could be repaired, and the company moves such car from such a point, it does so at its peril and is liable for the statutory penalty; the exercise of reasonable care to discover and repair defects at such a place is no defense. 3. The law neither defines a handhold nor the exact location of same, and it is for the jury to determine whether a car is equipped with proper handholds or with such suitable substitutes as will give to the employes greater securitj- in the coupling and uncoupling of cars. 4. Actions arising under the safety-appliance act are civil, and not criminal actions, and the Government is only required to establish by a preponderance of evidence the facts necessary to prove its case; and by a preponderance of evidence is not meant the greater number of witnesses, but it means that evidence which is the most satisfactory and which is entitled to the greatest weight. Reese Blizzard, United States attorney, and Monroe C. List, special assistant United States attorney, for the United States Van Winkle & Ambler for the defendant. instructions to jury, Dayton, District Judge (charging jury) : Exercising its constitutional right to regulate commerce between the states, Congress has passed a law which pro- vides : That from and after the 1st day of January, 1898, it shall be un- lawful for any common carrier engaged in interstate commerce by rail- road to use on its line any locomotive engine in moving interstate traflBc not equipped with a power driving wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. 610 FEDERAL SAFETY APPLIANCE ACT. That on and after the 1st day of January, 1898, it shall be unlawful for any sucli common carrier to haul, or permit to- be hauled, or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled, without the necessity of men going between the ends of the cars. That from and after the 1st day of July, 1895, until otherwise ordered by the Interstate Commerce Commission, it shall be unUuv'ful for any railroad company to use any car in interstate commerce that is not provided witli secure grab-irons or handholds in the ends and sides of each car for tlie greater security to men in coupling and un- coupling cars. That any such common carrier using any locomotive engine, running any train, or hauling, or permitting to be hauled, or used on its line any car in violation of any of the provisions of this act shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been com- mitted. This action which you have in charge and are to deter- mine is based upon this statute. There are five counts in the complaint charging five distinct violations of this law. There are three different verdicts that can be rendered by you, one finding the defendant guilty upon each and every count embraced in this complaint; another finding the de- fendant not guilty of each and every charge embraced in the complaint; and the third, finding the defendant guilty of certain ones of the charges made and not guilty of cer- tain other ones of them. You will therefore see that in considering this matter it is your duty to take up each one of these counts in this complaint, each charge of a viola- tion, and consider it independently of the others, and ascer- tain whether or not the defendant is guilty or not guilty of that specific charge in that specific instance and count. The court wants to say to you that the safety-appliance statute makes no exception and places no limitation upon this duty of the railroad company to supply these safety devices to their ears, and when I say cars, it has been considered and held, and rightly so, that an engine and tender are embraced APPENDIX G. 611 within that definition. It is therefore the duty of the rail- road company to use all reasonable care at all times to dis- cover and remedy these defects when they appear in any of these safety appliances attached to an engine or a car; and if a defect exists at a repair point, or at any place where such defect could have been remedied, and the company moves the car while in the defective condition, it does so at its peril and it becomes then subject to the penalty of the law. The law is not satisfied by the exercise of reasonable care to this end, but the company must, at its peril, dis- cover and repair all defects before moving a car from a repair point. Now, that you may understand that more fully, let me say to you that it is entirely reasonable that a railroad company should be required to maintain repair shops or repair material and make inspections and repairs at places within reasonable distances of each other; that in establishing such repair points the company has the right, in the ordinary operation of their trains between those re- pair points, when a train is in operation and defects arise, reasonably, to carry the car, the appliances on which are broken or defective, to the first repair point, but they do not have the right, having carried it to that point, to take it beyond that point without discovering and without mak- ing the necessary repairs to those safety appliances attached to that car, and if they do carry it beyond that point they are liable to the penalty provided for by this law. This action is not a criminal action, but a civil one, and as a civil action the burden of proof is upon the Govern- ment to establish by a preponderance of evidence the facts necessary to show the violation of the law on the part of the defendant, and by a preponderance of evidence is not meant the greater number of witnesses, but it means that evidence which to your mind is the most satisfactory and is entitled to the greatest weight. The very reason why we have juries to determine the facts in cases like this is that they may judge of the evidence after hearing the witnesses 612 FEDERAL SAFETY APPLIANCE AGT. and that they may take all of the facts and all of the cir- cumstances and weigh them and determine where the very truth lies. Under the ordinary rules of evidence, positive testimony is stronger than negative testimony where that negative testimony is not so strong as to make it apparent that the witnesses stating the positive fact are mistaken or untruthful. Evidence given by witnesses of the very circumstances and surroundings of the matter may fre- quently be of a determining character and kind. It is your peculiar province to weigh all the facts and all the circum- stances and all the testimony and from them as a whole determine, as I have said, wherein the exact truth lies. Now, I am asked by the defendant to give you this in- struction, which I do. Before the jury can find the defend- ant guilty in this case the Government must prove by a clear preponderance of evidence that the safety appliances on the cars mentioned in the complaint were out of repair and inoperative in the particulars mentioned in the com- plaint, and unless the Government does establish this by clear and satisfactory evidence, the jury should find the defendant not guilty as to each car which is not thus proved to have been defective. Gentlemen, it is for you to determine, touching the hand hold on the engine in this case, whether or not the appli- ance that was testified to by the witness Johnson, at the end or corner of the tender and the release bar, was a fair and proper substitute for the ordinary grab-irons referred to in this statute. If they were suitable for the purpose of enabling the operators of the train to couple and uncouple cars and were a fair substitute and suitable for that purpose, then it would be proper for you to find the defendant not guilty; if they were not suitable and proper for the purpose I have indicated, their presence could not be regarded as a compli- ance with the provisions of this statute. You will take into consideration the hand holds on the side of the car, in con- nection with the brace at the end and the release rod along APPENDIX G. 613 the end, and if you believe the whole to be a fair equipment and suitable and proper for the purpose of enabling the operators of the train to couple and uncouple cars, then I say it is your duty to find the defendant not guilty on that count; but if they are not suitable for that purpose and not effective for that purpose, then their presence, as I have said to you, upon this tender will not meet the requirements of this law, and of that you will judge from the testimony. Verdict for Government, 4 counts. UNITED STATES v. CHICAGO, ROCK ISLAND & PA- CIFIC RAILWAY CO. (In the District Court of the United States for the Western District of Missouri.) [173 Fed. GS4.] Decided February 21, J008. (Syllabus by the court.) 1. The Safety Appliance Act of March 2, 189.3, as amended, is a reme- dial statute and must have such construction as will accomplish the evident intent of Congress. Johnson v. Southern Pacific Com- pany, 196 U. S., 1. 2. The placing of a "bad order" card on a car as notice to the em- ployees that the car is defective does not prevent the movement of the car in a defective condition from being unlawful. 3. While the statute is in some aspects penal, recovery oi the penalty is had by means of a civil action wherein it is necessary only to prove the facts showing a violation by a preponderance of the evidence. STATEMENT OF FACTS. The defendant was charged with having violated the safety-appliance act and an action in debt was brought to recover the statutory penalty of $100. A jury was waived 614 FEDERAL SAPETY AI^PLIaNOE ACT. and the trial was to the court. The evidence showed that the defendant hauled an Erie coal car with the uncoupling chain "kinked" and wedged in the coupler head on one end of the car. In that condition it was impossible to operate the coupler without a man going between the ends of the ears. One of defendant's engines coupled on to a "cut" of cars in which was this defective car, and hauled it to the yard of the Chicago, Burlington & Quincy Rail- way Company where a number of other cars were coupled on to the "cut." The entire lot was then hauled by the defendant over to the Chicago & Alton yards where five more cars were attached. One of the defendant's inspectors undertook to operate the coupler in the Union Depot and found the car defective. He then affixed a "bad order" card to the car, indicating the nature of the defect. The car was then taken by the defendant to Armourdale. Kans. The defendant contended that by placing the "bad order" card upon the car, it had complied with the statute and was not liable for the penalty. Arba S. Van Vai.kenburg, United States attorney; Les- lie J. Lyons, assistant United States attorney, for the Uni- ted States. Frank Sebree, for defendant. OPINION OF THE COURT. McPherson, District Judge : I find in the Johnson case as reported in 196 U. S., 1, that while the rule of construction as to penal statutes requires such statutes to be strictly construed, yet in the safety-appliance statute the design to give relief was more dominant than to inflict punishment, the act therefore falling within the rule applicaljle to statutes to prevent fraud upon the revenue, and for the collection of customs. The APPENDIX G. 615 rule* there laid clown is that the statute is to be construed sensibly and as a whole with a view to accomplish the obvious intent of Congress. In that decision the Supreme Court reversed the Circuit Court of Appeals for this circuit, because, as it said, the view of the latter court has been too narrow. The great purpose of the statute was to remedy- conditions. That is the point of it. It is remedial and preventive, and if observed will reduce to a minimum the crippling and killing of railroad employees in this country. As I said yesterday, every one of us can recollect fifteen or twenty years ago that about four times out of five when you went to shake hands with a railroad employee, either a switchman, brakeman, or freight conductor that had been raised from a brakeman you took hold of a crippled hand; fingers gone, sometimes an entire hand or leg gone, because of the extraordinary hazardous business of railroading. The Supreme Court of the United States upheld the Iowa statute with reference to liability because of the negligence of a co-employ upon the ground that the legislature had the authority to single out the railroad and make them liable for the negligence of a co-employee, while the same would not be liable if applied to a manufacturing plant, solely because of the extremely hazardous business of railroading, placing railroads in a distinct class. You can scarcely pick up a paper but what j^ou read of some accident to an employee, but it used to be ten times worse. Up in Iowa we do not have one accident now to where we used to have ten. The dockets used to be crowded with work by reason of the number of these accidents, and the percentage has greatly decreased. I do not know how it is in Kansas City, but if it has not decreased, it is on account of the marvelous growth of Kansas City. But I am sure the percentage has decreased. That is the purpose of this statute, and everyone who has humane views commends this statute. While I suppose, of course, there are no statistics to prove it, I have no doubt 616 FEDERAL SAFETY APPLIANCE ACT. that the enforcement of this statute has been a money-saving proposition to the railroad companies. I have no doubt that the occasional infliction of a small penalty of $100 prevents many a $5,000 and $10,000 judgment. But it can not be said that the statute was enacted for that purpose. It was enacted for the protection of railroad employees. It is within the knowledge of every one of us that everybody is negligent almost every day of his life. We cross these street-car tracks without a thought in our minds that we are Avithin miles of a track. Sometimes we are reading a paper, or visiting with some friend, and if we are run dowTi we could not recover because of our own gross contributory negligence. In a great percentage of these railroad cases the employees are denied a recovery because of their own negligence. You seldom have a case but what somebody is negligent. If there was no negligence, there would be but few cripples or untimely deaths. What is the use of putting up a red card on the end of a car, as was done after the United States inspectors spotted the car, except to call the attention of some one to the fact that it needed repairs ? That does not stop brakemen from going in there. Men are negligent because they are unthinking for the time being, and some of them have a dare-devil spirit. Any day you can stand in the railroad yards and see a switchman who stands in the middle of the track. The switch engine comes to him. He takes his life in his hands every time he does it, but he steps on the s^vitchboard and looks around for the applause of the crowd about as much as to say, "See my agility." You can not stop that. You can not stop a man from going in between ears by putting a red sign on it, and they will not report it, because they do not care to have the hostility of the company that employs them, and they do not say anything about it unless they get hurt. You and I would do the same. Naw, while this is a penal statute, it has the form of a civil action. There was a time when the courts held in APPENDIX G. 617 slander and libel cases where the words used imputed a crime that the proof must convince the court or jury beyond a reasonable doubt, but I understand that the rule has been abrogated. That weight of proof is not required anywhere, except in proving an indictment, and this is not that kind of a case. Now, this inspection of the 23d was very indefinite and vague. One man has no recollection about it at all. He placed thereon a mark "0. K. " The other man has no recollection whatever, except the memorandum in his book. That kind of an inspection will not do. The next thing we know this car is on the way, and my notion about it is that the car would have been taken to St. Louis in that condition if it had not been that these Government inspectors happened along at that time. Now, if these Government inspectors, who in all cases are ex-railroad employees, could see this, why could not this train crew see it ? And they would not have seen it when they did if they had not seen these Government inspectors riding this car, and they then supposed something was wrong. The two Government inspectors were on this particular car, so if the train was cut they would still be with the car, I suppose. Now, here is a case of $100. If the penalty were extreme, a jury would hesitate more about inflicting the penalty. I would like it better if the same penalty was fixed in these twenty-eight hour cases. I have tried a good many of them, and I have never yet tried one that called for more than the minimum penalty, and I have never inflicted more than that. In most cases there is some substantial reason for delay, and too often a good deal of malice is behind the prosecution, not on the part of the Government officials, but on the part of the shipper. He believes he has been charged a little too much for his hay or grain, or has some other complaint. In nearly every case under that statute that I have tried, I have found that kind of ia spirit behind the prosecution. Here is a class of cases where it is impossible to have any malice back of the prosecution. The penalty is 618 FEDERAL SAFETY APPLIANCE ACT. light, and in every case where the proofs are reasonably sufficient, I think it is wise and proper and benevolent to enforce the penalty. And I think it is an act of benevolence to the company itself to see to it that these things are broken up, and thereby lessen the amount they have to pay in personal injury cases. There are many thousand employees in this hazardous business, and I do not think in this case there is any sufficient excuse shown. There is no telling how lonar that car had been in that condition, and I have no doubt that if these Government inspectors had not been there, that car would have been hauled across the state of ]\Tissouri and then to Pennsylvania, and with what result nobody knows. The judgment will be for the payment of the penalty of $100, and ninety days for a bill of exceptions will be granted. UNITED STATES v. SOUTHERN RAILWAY COMPANY. In the District Court of the United States for tlie District of South Carolina. Decided February 2'/, 1909. 1. A suit under the safety appliance act to recover penalties for viola- tions of said act is civil and plaintiff is required only to prove its case by a preponderance of the evidence. 2. Although the defective car does not contain any int^erstate traffic, yet if it is hauled in a train which contains a car that is loaded with interstate traffic, the act applies. 3. Inspectors in the employ of tlie Interstate Commerce Commission are not recjuired to inform the employees of the defendant of the facts found. 4. The act imposes upon the railway company an absolute duty to main- tain its coupling appliance and grab-irons or hand-holds in op- erative condition. APPENDIX G. 619 5. A car coming without tlio state and being switched from one yard in the state to another yard in the state in furtherance of a design to transfer it to its final destination is engaged in interstate traffic. Ernest F. Cochran, United States Attorney, and Ulysses Butler, special assistant United States Attorney, for plain- tiff. Jacob Muller for defendant. INSTRUCTIONS TO JURY. Brawley, District Judge (charging jury) : The Court is requested by the learned counsel for the plaintiff to give you these instructions: 1. This is a civil case and the Government is only required to prove its case by a preponderance of the evidence and not beyond a reasonable doubt. United States v. L. V. Ry. (not yet reported), District Court; United States v. P. & E. Ry. 162 Fed. Rep., 403 ; ?7mYe(i States \. Chicago Great Western Ry., 162 Fed. Rep. 775; United States v. B. & 0. Swn. R. (C. C. A.), 159 Fed. Rep., 133. Granted. 2. If the jury find that the defendant hauled a car which was defective in not complying with the safety-appliance law as to coupling appliances, or grabirons, or handholds, al- though the defective car does not contain any interstate traf- fic, yet if it is hauled in a train that contains a car that is loaded with interstate traffic, then the act is violated, even though the car which contains the interstate traffic may not itself be defective. United States v. L. & N., 162 Fed. Rep., 185 ( District Court) ; United States v. Chicago Great Western Ry., 162 Fed. Rep., 775 (District Court) ; United States v. Wheeling & L. E. (not yet reported), District Court. Granted. 3. Whenever a ear is loaded in one state of the Union with a commodity which is destined for another state, and begins to move, then interestate commerce has begun and does 620 FEDERAL SAFETY APPLIANCE ACT. not cease till the car has arrived at its point of final desti- nation. The Daniel Ball, 10 Wall., 557; United States v. Belt Elf. (not 3^et reported), District Court. Granted. 4. Inspectors in the employ of the Interstate Commerce Commission are not required to inform the employes of the defendant, when they make the inspection of the cars sued upon, of the defects found in the appliances ; the jury should not discredit their testimony because the inspectors did not so inform the employes of the defendant. United States v. Chicago Great Western Ey., 162 Fed. Rep., 775. Granted. 5. The safety-appliance law of Congress imposes upon a railway company an absolute duty to maintain the pre- scribed coupling appliances and grabirons or handholds in operative condition, and it is not satisfied by the exercise of reasonable care to that end. St. L., I. M. & 8. v. Taylor, 210 U. S., 281; Uvited States v. A. T. & S. F. Ey. (C. C. A.), 163 Fed. Rep., 517; United States v. D. & E. G. E. (C. C. A.), 163 Fed. Rep., 519; United States v. P. & E., 162 Fed. Rep., 403. Granted. The court is requested by the defendant to give you certain instructions : 1. This being a suit by the Government to recover a penalty the rules of criminal procedure and evidence may ap- ply, and the defendant is presumed to be innocent of the violations of law charged against it until it is proved to have been guilty beyond a reasonable doubt. Court. The court refuses that instruction. The rule is this: This is a civil action to recover a penalty, and as in all civil cases the plaintiff must establish his case by clear and satisfactory evidence, and the jury must determine, if there is testimony on either side, by the preponderance of the testimony, the careful weight of the testimony. 2. As regards any material issue of fact in this case, if the jury have any doubt they should solve such doubt in favor of the defendant. Court. The court can not give you the instruction in that form. That is disposed of by what the court says in APPENDIX G. 621 refusing the first instruction. They must establish it by the preponderance of the testimony. If you have any doubt as to the preponderance of the testimony, then the plaintiff can not recover. 3. In a suit by the Government under the safety-appli- ance acts to recover a penalty for an alleged violation of the law by a railway company, these acts can not be regarded as imposing upon the railway company an absolute duty in the sense that it becomes penally liable for a violation of the law without regard to the question of intent or the question of diligence on the part of the company to avoid such violation. Refused. 4. If a violation of these safety-appliance acts by a rail- way company is unintentional and unavoidable on the part of the company, it is not liable to the penalty prescribed by the acts. Court. The court can not give that instruction. The ques- tion of intention does not come into play at all. 5. The jury in this case can not find a verdict for the plaintiff in this action for any other defects than those al- leged in the complaint to have been defective. Court. The court gives you that instruction, but in con- struing the complaint you must give to it fair and reason- able interpretation. 6. If the jury have a reasonable doubt as to whether the cars alleged in the complaint to have been defective were in fact defective as alleged in the complaint, they should find a verdict for the defendant. Refused. 7. If the court refuses No. 6, then the burden of proof is on the plaintiff in this case, if in the minds of the ju- rors the evidence on any issue of facts is evenly balanced be- tween the plaintiff and the defendant, they should resolve that issue in favor of- the defendant. Granted. 8. Within the constitutional meaning and extent of the safety-appliance acts, it can not be considered that a car whose destination is a point without the state is being used in interstate commerce when being shifted from point to 622 FEDERAL SAPETY APPLIANCE ACT. point in a railway yard l)y a shifting engine within the state, and is not in the course of an extended movement beyond the limits of the state. Court. The court interprets that instruction as intended to apply to the movement of a car containing coaL which had been brought from some point in Tennessee and was in- tended for some point in the state of Georgia, and which was moved from one of the yards of the company to another yard of the company. If you find the fact to be that that car had been engaged in interstate commerce and had come from a point in Tennessee, and was shifted to another yard of the defendants in furtherance of the design to have it transferred to a point in Georgia, then it was interstate commerce within the meaning of the law. As to the defect in the engine, the court instructs you that if when the shift- ing engine began the movement of that car from one yard to the other, that engine v»'as in good condition, the coupler was in a safe condition, and not defective, and if in the transit between the yards it became defective, then the company would not be liable, if they repaired the defect as soon as possible. All mechanical appliances are liable to get out of order in the use, and all that the company can fairly be re- quired to do is to see that when the cars began to move, when the engine began to move, that all of the appliances were perfect, and if in the course of the movement, as the re- sult of the movement it became defective, then the act would not apply to it, provided the company repaired it before moving again. 9. The interstate transportation by a railwa.v company of its own property is not "interstate commerce." CoTRT. The court must refuse that instruction in that shape. It will instruct you that if Iho car referred to. con- taining sand, was being moved from South Carolina into North Carolina for the company's own purposes, if it was carried on a train which was engaged in inti^rstate commerce, and this car was defective, it falls within the denunciation of the statute still. APPENDIX G. 623 UNITED STATES v. ATLANTIC COAST LINE RAIL^ ROAD COMPANY. In the District Court of tlio Ignited States for the District of South Carolina. Decided February 24, 1909. 1. A suit under the safety-appliance act to recover i>enalties for viola- tions of said act is civil and plaintiff is required only to prove its case by a preponderance of the evidence. 2. Although the defective car does not contain any interstate traffic, yet if it is hauled in a train which contains a car that is loaded with interstate traffic, the act applies. 3. The act imposes upon the the railway company an absolute duty to maintain its coupling appliances and grab-irons or handholds in operative condition. 4. Whenever a car is loaded in one state of the Union with a com- modity which is destined for another state, and begins to move, then interstate commerce has begun and does not cease till the the car has arrived at its point of final destination. 5. Inspectors in the employ of the Interstate Commerce Commission are not required to inform the employees of the defendant of the defects found. Ernest F. Cochran, United States Attorney, and Ulys- ses Butler, special assistant United States attorney, for plaintiff. B. A. Hagood and L. W. McLemore, for defendant. Brawley. District Judge (charging jury) : Counsel for the Government has requested the follow- ing instructions: 1. This is a civil ease and the Government is only re- quired to prove its case by a preponderance of the evidence and not beyond a reasonable doubt. United States v. L. V. By. (not yet reported), District Court; United States v. P. & R. By., 162 Fed Rep., 403; United States v. Chicago Great 624 FEDERAL SAPETY APPLIANCE ACT. Western By., 162 Fed Rep., 775; Vnited States v. B. & 0. Swn. R. (C. C. A.), 159 Fed. Rep., 33. Court: The court gives you that instruction. In other words, you will decide this case as you would any other civil case, and not as in criminal cases, where the Government must make out its case beyond a reasonable doubt. You must decide it by the preponderance of the evidence. 2. If the jury find that the defendant hauled a car which was defective in not complying with the Safety- Appliance Law as to coupling appliances or grab irons or handholds, although the defective car does not contain any interstate traffic, yet if it is hauled in a train which con- tains a car that is loaded with interstate traffic, then the act is violated, even though the car which contains the inter- state traffic may not itself be defective. United States v. L. & N., 162 Fed. Rep., 185 (District Court) ; Vnited States V. Chicago Great Western By., 162 Fed Rep.. 775 (District Court) ; United States v. Wheeling & L. E. (not yet re- ported). District Court. Granted. 3. Whenever a car is loaded in one state of the Union with a commodity which is destined for another state, and begins to move, then interstate commerce has begun, and does not cease till the car has arrived at its point of final destination. The Daniel Ball, 10 Wall., 557; United States v. Belt By. (not yet reported), District Court. Granted. 4. Inspectors in the employ of the Interstate Com- merce Commission are not required to inform the employes of the defendant, when they make the inspections of the cars sued upon, of the defects found in the appliance ; the jury should not discredit their testimony because the inspectors did not so inform the employes of the defendant. United States V. Chicago Great Western, 162 Fed. Rep., 775. Granted. 5. The safety-appliance law of Congress imposes upon a railway company an absolute duty to maintain the pre- scribed coupling appliances and grab-irons or handholds in operative condition, and is not satisfied by the exercise of APPENDIX G. 625 reasonable care to that end. St. L., I. M. d S. v. Taylor, 210 U. S., 281; United States v. A., T. & S. F. Ry. (C. C. A.), 163 Fed. Rep., 517; Vnited States v. D. & R. G. R. (C. C.' A.), 163 Fed. Rep., 519; Vnited States v. P. dc R., 162 Fed. Rep., 403. Granted. 6. Tou are instructed that if you believe from a pre- ponderance of the evidence that the defendant hauled the cars, as alleged in the first, second, third, fourth, fifth, sixth, seventh and eighth counts of plaintiff's petition, when said ears were not equipped with couplers coupling automatically by impact and which could be uncoupled without the neces- sity^ of a man going between the ends of the cars, or was not equipped with secure handholds, or with a grab-iron, then your verdict should be for the Government. United States V. Nevada County N. G. R. (not yet reported). Dis- trict Court. Court : That seems to be already embraced in the pre- vious instruction ; the court gives you that instruction. Court : ]\Ir. Foreman and gentlemen : The Government has offered testimony tending to show that 9 cars went out from Florence on February 19 of last year in a defective condition, and the inspectors for the Government, whose duty it was to look after these matters, testified as to the na- ture of those defects and that they saw the cars moving out. and that they were engaged in interstate commerce. The defendant company has offered testimony tending to show that the inspector employed by the company, whose duty it was to make repairs within the car-repair yard, repaired at least 7 cars, or had it done under his direction, and that the cars alleged by the Government's witnesses to be defec- tive were not in point of fact defective in the particulars re- ferred to. Now, it appears from the testimony that the in- spectors made their presence known to the yardmaster of the defendant company when they arrived at the yards, some time in the morning, and they have given you the days and hours when they made their inspection of the cars. If you believe their testimonv, the cars were defective at the time 626 FEDERAL SAFETY APPLIANCE ACT. they examined them; whether the defects vfere repaired af- terwards, after the government inspectors saw them and be- fore they went out, is a question for you, and the credibility of the witnesses is a question for you. The fact that the government inspectors did not inform the employes of the company of the fact that they found these defects is not to De taken by you as any reason for discrediting their tes- timony. The law does not require them to make such report. The fact that they were on the ground — were known to be there by the yardmaster — is a circumstance to be considered by you in determining whether or not that fact would or would not make the railroad parties more than usually vig- ilant on such an occasion, put them on their guard, the in- spectors being there, going about and looking at the cars, whether or not that fact was not likely to make lazy people in charge of the yards take extra precaution to see that the cars in the yard were in proper condition, is a circumstance. Now, on behalf of the Government it is contended that even if the repairs proved to have been made by the witness, Summerford, car repairer, even if he made the repairs which he testifies to, that they w^ere not the defects that the Govern- ment's witnesses have pointed out. That is a question of fact for you, v/hich you must determine by your recollection of what the witnesses for the Government have testified to on that subject. Of course, if they made other repairs than those which the Government alleged were the defects, that would not relieve the company, but if the specific defects which the testimony of the government inspectors pointed out, if they were not repaired before the cars left, of course the com- pany is liable. The company has no record of any repairs made upon cars named in the first and ninth causes of action, and if you believe the testimony of the government inspectors that those cars were defective in the particulars pointed out, it would be your duty in that case to find a verdict for the Government upon those 2 cars. As to the 7 other cars, it depends entirely upon your conclusion as to the testimony on the point whether or not those cars APPENDIX G. 627 were repaired before they went out. If they were, why your duty would be to find a verdict for the defendant; if they were not. it Avould be your duty to find a verdict for the plaintiff in the full amount claimed by them. If you find for the (rovernment you will find so many dollars; if you find for the Government as to the whole amount then you will find for the Government $900. If you find for the de- fendant you will say: "We find for the defendant." If you find that 7 of the cars were repaired before they went out, you will find in any event $200. (United States Circuit Court of Appeals, Sixtli Circuit.) THE UNITED STATES OF AMERICA, Plaintiff in error, V. THE ILLINOIS CENTRAL RAILROAD COM- PANY, Defendant in error. [170 Fed. 542.] Error to the District Court of the United States for the Western District of Kentucky. (Submitted January 13. 1009. Decided March 2, 1909.) 1. An action by the Government to recover a penalty under tlie safety- appliance act is a civil action with all the incidents of a civil action. 2. From an adverse judgment in the District Court the United States may have a writ of error to the Court of Appeals. 3. If a railroad company starts a car in transit with a coupling so de- fective that the defect could have been discovered by inspection it will be liable under the safety-appliance act; but if a car when started in transit had no discoverable defect, the company will not be liable for the use of the car in that transit for a defect occurring during such transit, if there has been no subsequent lack of diligence either in discovering or repairing the defect. 4. When the Government has proven a car was laden with interstate commerce, has defective couplings, and was hauled over the 628 FEDERAL SAFETY APPLIANCE ACT. defendant's road, the defendant has the burden to show that it used all peasonable possible endeavor to perform its duty to discover and correct the defect. 5. The statute does not require the railroad company to have its cars properly equipped at all times and under all circumstances when in use, in order to escape a liability to a penalty. Before Severens, Circuit Judge, and Knappen and Sanford, District Judges. Severens, Circuit Judge, delivered the opinion of the Court. This is an action in the nature of a common law action of debt brought in the District Court by the United States against the Illinois Central Railroad Company to recover penalties of $100 each for twenty-two alleged infractions of Section 6 of the Safety Appliance Act of March 3, 1893, each offense being set out in a separate count. Some of these counts were for hauling cars in inter-state traffic with de- fective automatic couplings, some with defective grab-irons and some with draw bars not on the proper level above the track. There was a plea of not guilty to each count, and special matters of defense were alleged in the several answers. The issues were tried by a .jury. A stipulation as to certain facts was made by the attorneys for the parties and filed, of which the following is a copy: "Defendant, for the purpose of this case, admits: "1. That it is a corporation doing business in Illinois and Kentucky, and is a common carrier, transporting over its railroad in Kentucky, both cars carrviner inter-state com- merce and ears carrying shipments wholly intra-state. "2. That m each of the cars in paragraphs 1, 5, 6, 7. 10, 11. 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22 contained inter-state shipments; that each of the cars mentioned in paragraphs 4. 9 and 13. transported shipments purely intra- state, i. e.. from one point in Kentucky to another point in Kentucky, and that each one of said cars was hauled by defendant in a train in which there was at least one other APPENDIX G. 629 car that at the time contained an inter-state shipment; and that the engines mentioned in paragraphs 2, 3 and 8 were used by defendant wholly between points in Kentucky, to- wit: Between Louisville and Central City, and that said engines hauled trains at the times mentioned in said para- graphs 2, 3 and 8 composed of cars, some of which contained traffic purely intra-state, and each one of which trains con- tained the car mentioned in said paragraphs respectively containing inter-state freight." Evidence bearing upon the issues was adduced by the parties, and the jury having been instructed by the Court, rendered a verdict for the plaintiff on seven of the counts in the sum of $100 each, and for the defendant on the other fifteen. The plaintiff brings the case here on a writ of error. The first question arises upon a motion to dismiss the writ upon the ground that the proceedings in the Court below were essentially of a criminal nature, and that the United States cannot have a writ of error upon proceedings of that description. It seems proper to advert to certain funda- mental considerations upon which the procedure in such cases as this rests, and upon which the determination of the question here raised depends. It is urged by counsel for the defendant that the pun- ishment prescribed by the sixth section of this Act is a penalty, that the proceeding for its enforcement is crim- inal in its nature, and that therefore the trial of the cause is to be governed by the rules of evidence, and the right to have a review in an appellate court is to be determined by the law applicable to a criminal prosecution. It may be admitted that in a sense the punishment prescribed by the Act is a penalty. But penalties are of different sorts. They may consist of a sum of money which the offender shall pay in atonement for his forbidden act, in other words, of a fine, or shall suffer some other form of forfeit- ure of property, or they may consist of the infliction of the corporal punishment of the guilty party, or they may 630 FEDERAL SAPETY APPLIANCE ACT. consist of both of these punishments. The public through its government may employ, within certain limitations, such of these various forms of punishment as it may deem just and necessary to the common welfare. Off'Mises range in respect of their turpitude from the smallest to the greatest ; and the theory of punishment is that it shall be measured by the gravity of the offense. While it is true that the constitution and laws of the country are pre- scribed and enforced for the protection of property as well as of the person, yet they regard with greater concern the protection of the latter. And so, when for small offenses a pecuniary punishment is prescribed as the atonement, it has long been the practice to employ a civil action for its recovery. Assuming that the punishment is just, the con- sequences to the defendant are not far different from those which happen in civil actions, only it is the government which is the plaintiff. The consequences of the judgment are substantially the same to him as if the penalty was bestowed upon a private party, except with regard to the scintilla of interest he has in the public revenue. If the public may, for a sufficient reason, compel the defendant to pay a fine, it is of little importance to him Avhether the government keeps it for its owti purposes or turns it over to another who is already indemnified. Mere academic discussion of the theory of the practice by which it is done does not interest him. Probably in all the systems of law in the State and Federal governments, there are instances where to civil liabilities there are attached penalties, there being something wanton or gross or otherwise peculiar to the liability. Yet such penalties are enforced in civil actions. A very cogent, not to say persuasive, argument was ad- dressed to us, founded upon the prohibition of the Con- stitution against subjecting a person to be twice put in jeopardy for the same offense. It is urged that this prohi- bition extends to a review of the trial in an appellate court; and, further, that it applies not only to prosecu- tions for crimes, but to prosecutions for misdemeanors also. APPENDIX G. 631 And we must suppose that it is thought that the protection afforded thereby extends as well to artificial as to private persons; for the defendant here is a corporation. And if a private person may invoke it in a case when only the for- feiture of property is involved, there is color for the claim that a corporation may invoke it in a like case. This seems to us to be pushing the doctrine a long way and beyond its hitherto recognized scope. We held in United States v. Baltimore & 0. S. W. R. R. Co., 159 Fed. 33, 38, and again the case of United States v. Louisville <£• Nashville R. Co., recently decided, that the Government was entitled to prosecute a writ of error from this court to the District Court to review the proceedings in an action of debt to recover a pecuniary penalty which alone was the punishment prescribed. To this ruling we adhere. The result is that the motion to dismiss must be overruled. The principal questions upon the merits are two, and they arise upon the instructions given by the Court to the jury. 1st. Whether on the trial of an action such as this, the rule of the criminal law that the evidence must satisfy the jury of the guilt of the respondent beyond a reason- able doubt, applies. 2nd. Whether the judge correctly stated the law to the jury when he said (as he did in substance) that if the de- fendant equipped the cars with the proper appliances as required by the Act, and thereafter exercised the utmost degree of care and diligence in the discovery and correc- tion of defects therein, which could be expected of a highly prudent man under similar circumstances, it would have discharged its duty, and would not be liable to the penalty prescribed by the statute. Respecting the first of these questions, we have little to add to what we said in United States v. Baltimore & 0. S. W. R. Co., supra, and the observations already made in discussing the motion to dismiss the writ of error. It is 632 FEDERAL SAFETY APPLIANCE ACT* impossible for us to distinguish this case upon any sub- stantial ground, so far as concerns the present question, from that of Zucker v. United States, 161 U. S. 475, where on the trial of an action by the United States to recover the value of merchandise forfeited by a fraudulent impor- tation, the case turned upon the admissibility^ of certain evidence. If the action was of a criminal nature, it was inadmissible. If it was not, it should have been received. The question was much discussed by Mr. Justice Harlan, and the result was that the Court held that the evidence should have been received, and this upon the ground that it was not a criminal proceeding. We have referred to instances where, in the enforce- ment of civil liabilities, penalties incurred by wrongful neglect to discharge them are also enforced; and yet we are not aware that it has ever been supposed that the rule of the criminal law respecting the degree of proof was to be imported into the trial of the civil action. The giving of such a remedy as that specified by the sixth section, without any restriction or condition, imports an action at law with the customary incidents of such an action. Being a remedy which does not touch the person, there is no such urgency for protecting him as to require that the rules for the conduct of a civil suit should be displaced, and those of a criminal proceeding be taken in. We think the law does not sanction such an anomalous compound in legal proceedings. If, indeed, there be no substantial dis- tinction between a ease where the Government retains the fine and one where it is given to a private party in excess of his otherwise legal right, there are decisions in point which hold that where the suit is a civil action for a penalty the evidence is sufficient if it preponderates, and need not be such as to remove all reasonable doubt. Boherge v. Burnham, 124 Mass. 277. O'Connell v. Leary, 145 Mass. 311. Louisville & N. R. Co. v. Hill, 115 Ala. 334. Peojde V. Briggs, 47 Hun. (N. Y.) 266. APPENDIX G. 633 We are therefore of the opinion that the court erred in its instruction to the jury in this regard. As the judgment must be reversed for the error above shown, we think it necessary to consider and dispose of the other allegations of error above stated, to the end that the court below may not be vexed with the same questions^ which as seems quite certain, will arise upon the new trial. The trial of so many causes of action upon one petition creates as it did for the court below some embar- rassment in dealing with the questions Avhich arise upon the several counts of the petition. Moreover, upon the new trial the evidence may not be the same as that given on the first. Evidence of new facts may be adduced, which as we should think, would be desirable in order to make proper conclusions upon the merits of the several cases included in the petition. We shall best subserve the present pur- pose, by indicating the general principles by which in our opinion the trial should be governed in respect to the sub- ject we are now considering. The instruction given to the jury in regard to the meas- ure of the duty imposed upon the railroad company by the provisions of the Safety Appliance Act was in the main, but not altogether, substantially in accord with the con- struction which we gave to them in the case of St. Louis & 8. F. R. Co. V. Delk, 158 Fed. 931. It is urged however, by counsel for the Government that our opinion in that ease has been overruled by the opinion of the Supreme Court in the case of St. Louis & Iron Mountain By. v. Taylor, 210 U. S. 281. If this seemed to us with certainty to be so, we should of course be bound to yield our own opinion to the superior authority of that court. But if the judgment of the Supreme Court has not concluded the questions now presented, we think the duty incumbent upon this court is to follow its own decision unless, indeed, it should become convinced that it was Avrong. Thereupon, it will remain for the Supreme Court to determine whether the ruling it has 634 FEDERAL SAFETY APPLIANCE ACT. announced is to be extended to facts such as those of the present case. The question recurs to what extent is a judgment of a superior court of controlling authority? We do not al- lude to that respect and confidence which is alwaj^s due to every expression of opinion of the superior court from the subordinate court, but to those declarations of essential import resting upon the facts and leading to the conclusion manifested by the judgment. Declarations of law bearing upon the issues and indicating the proper judgment there- on are binding. The facts and law of the instant case only are in the eye and thought of the court. But expres- sions of opinion as to how the law w^ould be upon facts es- sentially different from those in issue are not controlling in another case when such different facts and issues are presented. These rules have been declared on many occa- sions by the Supreme Court itself, and no appellate tribu- nal has more strongly emphasized them. Cohens v. Virginia, 6 "Wheat. 264, 399. Northern Bank v. Porter tp., 110 IT. S. 608. Plumley v. Massachusetts, 155 U. S. 461, 471, 474. Hans V. Louisiana, 134 U. S. 1. United States v. Wong Kim Ark., 169 U. S. 649, 679. Harriman v. Northern Securities Co., 197 U. S. 244. Doivnes v. Bidwell, 182 U. S. 258. In the case of St. Louis dx. By. Co. v. Taylor, supra, the suit was an action to recover damages for a personal injurv% and not a penal action such as provided by Sec- tion 6. It was found upon the provisions of those sec- tions of the act which relate to the subject of equipping the ears and was not a prosecution for the use of such cars. Besides it appeared in Taylor's case that only one of the meeting ends of tho oars which came into the collision whereby he was killed, was equipped with an automatic coupler, and that the end of the draw-bar on the other car was not so equipped but had the old style of link and pin APPENDIX G. 635 coupling. This latter fact was a plain violation of the law which necessarily meant that both the meeting ends should be equipped with the automatic coupling; otherwise there would be no coupling which would be automatic. We gather from the facts stated in the opinion in the Taylor case that the defect in the couplings of cars existed when the cars started on their journey, and that plates of metal, called "shims," were provided for temporarily remedying the inequality in the height of the draw-bars. If that was so, the railroad company was chargeable with notice of the defective condition of the draw-bars when the cars were sent out and was at fault in not putting them in order, and did not relieve itself by trusting to its em- ployes the making of the temporary makeshifts. AVhether the Supreme Court would apply the rule laid down in the Taylor case to an action brought by the Gov- ernment for a penalty under section 6 of the act we do not know. While we have held that in giving an action of debt to recover a penalty, the implication is that the procedure, the pleading, the evidence, and the review of the proceedings are to be such as are incident to an action of debt, a question of much importance remains which is whether the offense being penal, the court is not to have regard to the constituents of the offense itself, and deter- mine its quality by the tests of the criminal law. In other words, does the mere fact that the remedy is a civil action relieve the Government from proving that the offense charged was criminal in its nature and, specifically, was committed in willful neglect of the duty prescribed by law? The distinction between a remedy and the cause of action is clear enough, but the answer, notwithstanding anything decided in Taylor's case, is doubtful. Though involved in the case before us, the question has not been raised or dis- cussed. We incline to think it should be answered in the negative, but we do not decide it. This case was tried before the decision of the Delk case. But the opinion of the court as expressed in its instruc- 636 FEDERAL S.^ETY APPLIANCE ACT. tions to the jury, in most respects, proceeded along the lines of our opinion in the ease alluded to. In this latter ca,se the facts were that the car, on which were the defec- tive couplings, had been sent back by the Belt Line because of the defect. It had been on the dead track in the yard to await repairs, which had been sent for, and was in the midst of other cars. It became necessary to move the defec- tive car along the track in order to release and get out the other cars. It was during this operation that the plaintiff was hurt. There was evidence from which the jury might have found that the first knowledge which the defendant had of the defect in the coupler was when the car was sent back to it and it put the ear on the "dead track'* for repairs, and that it had done nothing toward actually pro- moting the transit of the car toward its destination. It was for the time being "tied up" for repairs. Still, as the majority of the court held, it was nevertheless engaged in interstate commerce, its freight not having yet been dis- charged. What we said in our opinion had reference to a ease so circumstanced. "We were not engasred in laying down universal rules upon the general subject, but only such as we conceived to be applicable to the facts of the ease then before ns. In effect we concluded that if the de- fect had occurred at some previous time and the defend- ant had knowledge of it. or should, with reasonable dili- gence, have had notice of it. and with such Imowledge, act- ual or implied, continued without some justifying neces- sity, to haul the ear upon its tracks while laden with goods which were the subject of interstate traffic, it would there- by violate the statute. We still concede that to be so. We think, further that the railroad company would be liable if it starts in transit a car with a coupling containing a defect which could have been discovered by inspection; and virr. vrrsa, if a car when started in transit had no discoverable defect, the railroad company would not be liable to the penalty for a use of the car in the same tran- sit by reason of a defect occurring during transit, pro- APPENDIX G. 637 vided there has been no subsequent lack of diligence either in discovering or in repairing the defect. We are of the opinion that when the Government has proved that a car laden for interstate traffic and with de- fective couplings, has been hauled upon its tracks, the railroad company is bound to prove exculpatory facts, such as that it has used all reasonably possible endeavor to perform its duty to discover and correct the fault. "We think, for example, that the court was in error in charg- ing the jury that in the case of the cars coming from Mound City the jury might indulge the presumption that the appliances of the cars were in proper condition when they started, and that they remained so until such time as they were shown to be otherwise. We think the burden of proof was on the other party. With regard to the sufficiency of the proof in view of the fact that the action is a civil, action and is for a penalty, we have already expressed our opinion. Now, as an original proposition we are unable to under- stand why it was, if Congress intended to enact such a law as it is now contended this law is, it should, after having proposed to itself the enacting a law "to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers" and having used fitting language to carry that purpose into effect and nothing more, have failed to declare that having so equipped its ears with the couplings, the carrier should be required at all times and in all circumstances when in use to have them in effective condition. To hold that Congress has done this, is to insert an interpolation into the act, and to make this interpolation such as shall require things con- fessedly impossible and to be apologized for by saying as counsel for the Government insist that we should, the law is so written, that it is a matter for the legislature, and not for the courts to determine. Is this a proceeding to be justified in order to make the statute mean what the coun- 638 FEDERAL S-APETY APPLIANCE ACT. sel think the law ought to be? It seems clear to us that Congress having accomplished its purpose by requiring carriers to equip their cars in the manner prescribed and to continue such equipment, was content to leave the inci- dents of their use to be regulated by the rules and principles of the common law. Generally, the accepted rule is that if a given construc- tion of a law leads to such results that it seems harsh, un- reasonable or to be performed with a great excess of diffi- culty, the court on seeing such a prospect will turn back to see if a construction is possible whereby such conse- quences can be avoided and another construction imposed having a more reasonable result. Such an act, we think, ought not to be so construed as to imply the intention to impose these consequences, unless its provisions are such as to render the construction inevitable. A time honored rule for the interpretation of statutes forbids it. Said Mr. Justice Field in delivering the opinion of the Supreme Court in United States v. Kirhy, 7 Wal., 482; "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislation in- tended exceptions to its language, which would avoid re- sults of this character. The reason of the law in such cases should prevail over its letter." This statement has been repeated by that court in numerous cases since that time; the latest being perhaps that of Jacohson v. Massachusetts, 197 U. S. 11. It is the opposite of this to recognize a hardship, an injustice, and then to fortify the way to it by adopting the fatalistic answer, "thus saith the law." And it is, indeed, worse than this if the law does not say it at all. It is to assume the con- clusion, and then mould the premises so that they may justify the conclusion. Accidents will happen, and at places more or less remote from places of repair, or where the car cannot be left upon the track without peril to the APPENDIX G. 639 public as well as to the employes. Undiseoverable defects may at any time appear while the car is moving on the track in a train, and it has been hauled in that condition before it can be known. We are not prepared to believe that Congress intended to impose a law upon a business of public utility which cannot be carried on without more or less frequent violations of such law, and to fasten thereon a liability to prosecution as for a crime or misdemeanor? Among the Fundamental Legal Principles, Broom in his Legal Maxims, 238, classes the maxim. Lex non cogit ad impossibilia, a rule of law which applies to statutes of the most positive character, statutes which cannot by any rule of construction be so interpreted as to prevent the cer- tainty of the result. And in his commentary upon it he says ; "The law in its most positive and peremptory injunctions. is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the admin- istration of laws must adopt that general exception in the consideration of all particular cases." While this maxim is not uniformly applicable, as for instance when the statute relates to a dangerous business and gives a private remedy, we think it is a proper one to apply in the construction of a law inflicting a penalty, and the business to which it relates is not itself unlawful. It was upon the application of this maxim that the case of Chew Heong v. United States, 112 U. S. 536, was decided. The Chinese Exclusion Acts of 1882 and 1884 forbid the re-entry of a Chinese laborer without the pro- duction of the collector's certificate which by these Acts he should obtain on leaving the United States. But he had left prior to the date of the Acts, and so of course could not have obtained the certificate. By the treaty with China of 1880, being resident here he was entitled to go abroad and return without hindrance or condition. Congress, however, had the power to pass laws in derogation of the treaty. But although the denial of the rio-ht to return without the certificate was peremptory, the 640 FEDERAL SAFETY APPLIANCE ACT. court held that in this, the Act required an impossibility, and for the purpose of saving the right given by the treaty, it was to be presumed that Congress did not intend its pro- hibition to be absolute, and that the Statutes should be so construed as to avoid an unreasonable or unjust result. On the argument, counsel for the Government when asked what language of the act created the absolute duty contended for, referred to the last clause in Section 2 which is, "and which can be uncoupled without the neces- sity of men going between the ends of cars," as if that language constituted an independent requirement. But this language is descriptive of the equipment required, and imports nothing in regard to the duty of the carrier when from accident or some other cause without his fault, the equipment becomes deranged. And because the statute does not make any command in that regard, the general law supplements the duty of the carrier by declaring that he shall use the utmost diligence in having the defect cor- rected. By this harmonious cooperation of statute and com- mon law, the intended result is worked out without any unjust result. The court is not at this time made up of the same mem- bers as it was when the Delk case was decided, but all are agreed that the decision was right as applied to a defect occurring during transit and that so applied we should abide by it unless it shall be overruled by the Supreme Court. Still, if it should be held that our decision in the Delk case was wrong, it does not necessarily follow that in this suit for a penalty the court below was also wrong in giving the instruction complained of. The result of these considerations is that for the error in the instruction regarding the sufficiency and cogency of the proof required, the judgment must be reversed and a new trial awarded. b APPENDIX G. 641 UNITED STATES v. WABASH RAILROAD CO^IPANY. (United States District Court, Southern District of Illinois.) [Affirmed, 168 Fed. 1.] June 6, 1907. 1. The Safety Appliance Act requires that each coupler on a car be operative in itself, so that an employee will not have to go to another car to uncouple the car in question. William A. Northcott, United States Attorney, Henry A. Converse, assistant United States attorney, and Luther M. Walter, for the United States. McAnulty & Allen, for the defendant. Humphrey, District Judge (charging jury) : The ease you are considering is a suit brought by the Gov- ernment of the United States against the Wabash Railroad Company for the enforcement of a penalty. There is a law of Congress, passed several years ago, and amended in some instances since, requiring interstate railroad companies to equip their cars with certain appliances for the safety of train crews. We call it the "Safety Appliance Act." And the same Act fixes a penalty for every violation of that statute, for every failure of the railroad company to comply with the statute, for every instance of taking into its service and using cars not so equipped, or having such equipment not in good operating condition. During the progress of this case, as the witnesses have testified, you have learned what these various appliances are. Air brakes upon at least 75 per cent, of the cars in a train, so connected that such ears so equipped would be under the control of the engineer; couplers equipped in such a way that, by a device handled from the side of the car, cars can be coupled or uncoupled with cars to which they may be attached in the train without the necessity of a member of the train crew going between the ends of the two cars. 642 FEDERAL SAFETY APPLIANCE ACT. This declaration has seventeen counts — a separate count for each alleged violation. Some of these counts charge upon insufficient air brakes ; others charge upon lack of grab-irons or defective grab-irons ; others charge upon defective couplers and coupling devices. You will have the declaration with you, and the evidence has made you familiar with what I mean when I refer in this casual way to these various devices. Now the Government will be entitled to a verdict of guilty in this case as to those counts in which it has proven by a preponderance of the evidence that the cars were in use at the time in question in violation of the statute. There is no dispute, I think, shown by this record as to the fact that all these cars and trains counted upon were in interstate busi- ness, so that the issue you are trying upon each count is an if?sue of fact pure and simple, whether the cars so in use, or the trains so in use, were being used in violation of these statu- tory requirements. And, if you find from the evidence, from a preponderance of the evidence upon any one of these counts, that there was a violation of the statute as charged in such count, then as to such count you will find the defendant gTiilty. On the other hand, if you find as to any one of these counts that there was no violation of the requirement of the statute as to such particular count, find this from a preponderance of the evidence, then as to such count or counts you will find the defendant not guilty. You will have nothing to do with the punishment in the case. Congress has fixed that specifically in the Act itself, and the court Mali enforce the punishment upon your verdict of guilty or not guilty, as to each count. In making up your minds upon the evidence, the court further charges you that by a preponderance of the evidence I mean the greater weight of the evidence, the convincing power of the evidence ; not the number of witnesses, not any- thing else except that indescribable something which con- vinces a man of the truth of a fact, that gives weight to APPENDIX G. 643 evidence. In considering these witnesses who have testified, you have a right to consider all that you have seen and all that you have heard as coming from the witnesses, their manner and appearance upon the stand, their frankness and honesty, or the lack of it, their interest in the ease, if any has been shown, or their prejudices, if any have been shown, the reasonableness or unreasonableness of the story they have told, r.nd whether they have contradicted themselves or been con- tradicted by other reliable testimony in the case. All these considerations you have a right to weigh in making up your judgment as to the weight to be given to the testimony of any witness, but in doing this you will not give either more or less weight to the testimony of any witness because of the fact that such witness testifies on behalf of the Government, or because of the fact that such watness is an employee of the railroad company, but you Mill give to the testimony of each wdtness that degree of weight which, in your judgment, it is entitled to, from all facts and circumstances in the case. The statute concerning the coupling devices requires that the automatic coupler in use must be operative for each car as to the device of that particular ear, so that an employee of a railroad company would not have to go to another car to make the uncoupling of the car in question. The jury will take that into consideration in connection with the other evi- dence in the case. * * * UNITED STATES v. BELT RAILWAY COMPANY OP CHICAGO. (United States District Court, Northern District of Illinois, Eastern Division.) [Affu-med, 168 Fed. 542.] January 23, 1908. (Syllabus by the court.) 1. An intrastate belt railroad which accepts for transfer between dif- ferent trunk lines cars loaded with interstate traffic is subject to the Safety Appliance Act even though its rails lie wholly withia the confines of a single State. 644 FEDERAL SAFETY APPLIANCE ACT, 2. Interstate commerce begins as soon as an article starts to move from one State to another, and every carrier convejdng it is engaged in moving interstate commerce. Edwin W. Sims, United States attorney, Harry A. Parkin, assistant United States attorney, and Luther M. Walter, special assistant United States attorney, for the United States. William J. Henley and Willlym L. Reed, for the de- fendant. Landis, District Judge (charging jury) : This is a suit by the United States against the Belt Railway of Chicago for the recovery of a penalty of $100 for the movement of a train made up of 43 freight cars, of which less than 75 per cent, had their brakes used and operated by the engineer of the locomotive drawing the train. The Act of Congress controlling this situation provides that every common carrier engaged in interstate commerce shall have not less than 50 per cent, of the cars composing a train equipped with brakes so as to be operated by the engineer of the locomotive drawing the train. The Act also author- izes the Interstate Commerce Commission to increase the minimum percentage of cars in any train required to be so operated, and provides that failure to comply with such re- quirement shall be subject to penalty. Prior to the date on which the movement under inquiry in this proceeding took place, the Commission, in the exercise of this authority, had taken such action that on the day this movement took place it was the duty of the defendant, in the operation of its train, to use power or tram brakes on not less than 75 per cent, of the cars composing the train. It appears in evidence that the defendant 's train was made up of 43 freight cars, including C, R. I. & P. car 85176 and an engine and caboose, and that the car mentioned contained lumber under shipment from a point in Illinois to a point in Wisconsin; it also appears that power or train brakes were used on but 15 cars composing this train, and that on APPENDIX G. 645 the remainder of the cars being the difference between 15 and 43, the power or train brake was not used. The question, therefore, presented is whether the Belt Railway Company, at the time of the movement of the train, was engaged in interstate commerce; and on this point I charge you that when a commodity originating at a point in one State, destined to a point in another State, is put aboard a car, and that car begins to move, interstate commerce has begun, and that interstate commerce it continues to be until it reaches its destination. If, therefore, between the point of origin of this shipment and the point of destination, the car in which it is being vehicled passes over a line of track wholly within a city, within a county, within a state, the railway company operating that line of track while moving such car is engaged in interstate commerce. So, appljang this rule of law, if it has been shown to you that on the occasion named the Belt Railway Company was engaged in interstate commerce, and while so engaged moved a train of which less than 75 per cent, of the cars were equipped and operated with power or train brakes from the engine, you will find in favor of the United States. If, on the contrary, it has not been so shown, your verdict will be for the defendant. UNITED STATES v. PHILADELPHIA & READING RAILWAY COMPANY. (United States District Court, Eastern District of Pennsylvania.) March 17, 1908. [Fbr opinion denying new trial, see 162 Fed. Rep., 403.] 1. An action brought to recover the penalty provided for in the Safety Appliance Act is not a criminal case. 2. The Government need not prove its case beyond a reasonable doubt; it is sufficient if it furnishes clear and satisfactory evidence of all the necessary facts. 3. The statute requires as to couplers that the apparatus on each end of every car shall be in operative condition. 646 FEDERAL SAFETY APPLIANCE ACT, 4. In order to constitute a violation of the Safety Appliance Act the car must be moved in a defective condition. 5. Where a car whicli had been at rest at a station for a period of time is taken out upon the road in a defective condition the carrier is liable for tiie penalty, and it is wholly immaterial whether the defendant knew of the defect or oould have ascertained its condition by the exercise of reasonable care; in such a case the carrier must find tlie defect at its peril. J. WiiiTAKER Thompson, United States attorney, John C. SwARTi,EY, assistant United States attorney, and Luthee M. Walter, special assistant United States attorney, for the United States. James F. Campbell, for the defendant. McPherson, District Judge (charging jury) : Gentlemen of the jury: It is possible that you may have heard the instructions that I g'ave to the jury that just went out, but it is my duty to repeat them briefly to you with regard to this case. Practically the same questions are in- volved, and another question also with which you need not be troubled. Of course, the defendant, as is conceded, is an interstate common carrier ; that is, it is engaged in the business of carry- ing commerce between States, between one state and another, and, therefore, that business is within the power of Congress to regulate. This particular car, as has been agreed upon, originated at a point in the state, and its journey terminated at another point within the state. Under certain circumstances there would be no question whatever that it was beyond the power of Congress to regu- late it in any way, because, as you know, and I may say briefly, the power of the State over business thf.t is entirely transacted within its borders is exclusive. Congress has no power over it. It is only commerce that goes from one State to another, interstate commerce so-called, that Congress has a right to regulate. But there is a legal question here based upon uncontroverted evidence that will be for the court to APPENDIX G. 647 determine later, and for the present, therefore, we shall treat this case as if it were within the power of Congress to regu- late, and as if this car was engaged in interstate traffic. So you will understand that you may assume that to be the case. Therefore, if there were nothing else in the case and you should find that this car was out of order and that the Act had been violated, it would be your duty to find in favor of the Government for the penalty which is denounced by the Act of Congress. The only question of fact, therefore, that will be for you to determine is whether or not this car was out of order and whether these appliances which have been made necessary by the Act of Congress were in operative condition, because if they were not, if this car would not couple automatically by impact, or if it could not be uncoupled unless somebody went between the cars in order to uncouple it, then it would be out of operative order and the Act of Congress v/ould not be violated. Whether or not the company inspected this car, were diligent and careful in inspecting it, is not a matter that you need concern yourselves about. As I regard the statute, the Act requires these defects to be found at the peril of the company, and if they fail to find them, then they are respon- sible for the penalty, even though they may have honestly done all in their power to do. If there is carelessness and negligence, of course they would be responsible, but even if they put careful men on, and careful men had done their work as well as they knew how ; nevertheless, if through some oversight— which even the most careful men are liable to commit — this defect was not discovered, then the company would be responsible. But the question of fact here is whether or not this defect existed, and that contention is raised here by the defendant. The allegation is, and they have produced evidence bearing upon that question, that this defect did not exist upon this particular car, and you must resolve that question according to the evidence. That is, the inspectors may have been mis- taken ; they may have found a defect, but not upon this par- 648 FEDERAL SAFETY APPLIANCE ACT. ticular car, and, as the Government put its case upon this particular car being out of order, of course it is bound by that allegation, and, although some other car may have been out of order, unless it was this one, of course, the Government cannot succeed. There is only this else to be said: This is not a criminal ease. While it is a suit for a penalty, it is not a criminal case. The suit here is not brought upon an indictment found by the grand jury. It is brought as civil suits are ordinarily brought, by the filing of a statement of claim on behalf of the Government, and the suit here is to recover a verdict of $100, and not to punish the defendant by a fine or imprison- ment inflicted upon any person. That being so, the Govern- ment is not bound to make out its case beyond a reasonable doubt — which is the rule, as you know, which is to be applied in criminal cases — but the evidence must, since this is a penal ease, be clear and satisfactory, and the burden of proof is upon the Government throughout the case to make out all the elements which go to establish the charge before it is entitled to recover. And you must apply those rules to the evidence that has been laid before you. If the Government has not made out its case by clear and satisfactory evidence, then it has failed, and your verdict ought to be in favor of the defendant. If you are satisfied clearly and satisfactorily that this defect existed upon this car, so that it could not couple automatically by impact, or that it could not be uncoupled unless somebody went between the cars, then, as a matter of course, the car was out of order, and the defendant would be liable for the penalty. I should add this : That it is the duty of the companies to keep both ends of these cars in proper order; that the Act is not complied vnih unless both couplers are in working and opera- tive condition. It is not enough that one should be in order — both must be so that they can be worked. There has been evidence here that under certain conditions, although one of the couplers might not be working, still if the car that is defectively equipped met another car that was in good order, APPENDIX G. 649 the process of coupling— of automatically coupling— might take place, hut even then the cars could not he uncoupled under certain conditions unless a hrakeman or somehody went between the cars in order to uncouple. But the rule is, and I instruct you that that is the meaning of the statute, tliat both ends of each car must have the coupler in proper operative condition, and if either is out of order the law has been disobeyed. There is only one charge here, and therefore your verdict would either be in favor of the Government for $100 or in favor of the defendant. UNITED STATES v. BALTI]\IORE & OHIO RAILROAD COMPANY. (United States District Court, Southern District of Ohio, Eastern Division.) June 10, 1909. (Syllabus by the court.) 1. An action to recover a penalty under the Federal Safety Appliance Law is civil in its nature, not criminal, and the Government, in order to obtain a verdict in its favor, must satisfy the jury by a preponderance of the evidence that the facts set out in its cause of action are true. 2. A carrier, having equipped its cars with couplers and gi'ab-irons re- quired by statute, is not absolutely bound to insure tliat such appliances are constantly in good order and workable condition. 3. It is just and reasonable that a carrier should exercise a high degree of care to keep couplers and grab-irons in proper condition, but it would be unjust and unreasonable to say that, having fulfilled its utmost duty in that regard, it should be held responsible for a condition whicli might occur without its fault. 4. The carrier's duty of inspecting its cars is a continuing one, and reasonable care requires that couplers and grab-irons should be inspected at reasonable intervals of time by skillful and competent inspectors. The carrier is bound to prove that it uses all reasonxbly possible endeavor to perform its duty in regard to discovering and correcting defects in its safety appliances. 5. If a carrier engaged in interstate commerce moves a car having a defective coupler which could have been discovered by reasonable inspection, then it would be liable for violation of the Safety Appli- 650 FEDERAL SAFETY APPLIANCE ACT. ance Acts; but if the carrier uses all reasonably possible endeavor in the performance of its duty of inspection and finds no defects, then it has performed its duty and is not liable. C. Positive testimony is to be preferred to negative testimony, other things being equal; but what may be negative testimony under one state of facts is not negative under another. If the jury finds it was the duty of a carrier's inspectors to inspect the cars and that they did inspect them, but did not see any defective appliances, that is not sucli negative testimony as not to receive the same consideration as the positive testimony of the government inspectors. Sherman T. McPherson, United States attorney, and Ulysses Butler, special assistant United States attorney, for the United States. F. A. Durban, R. J. King, and J. M. Lessick, for the de- fendant. Sater, District Judge (cliarging jury) : Gentlemen of the jury, there is a section of the law which provides that it shall be unlawful for any common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be un- coupled without the necessitj^ of men going between the ends of the cars. It was the duty of the defendant as a common carrier to have each end of each car equipped with a coupler of the kind pre8cril)ed by statute. The first cause of action charges that, in violation of law, on the 14th day of October, 1907, the defendant company hauled westerly from Holloway, Ohio, over its line of railroad, in one of its trains, car num- bered 57677, loaded with interstate traffic, when the coupling and uncoupling apparatus on its "A" end was out of repair and inoperative, in that the chain connecting the lock block or lock pin to the uncoupling lever was missing on that end of the car, in consequence of M^hich it was necessary for train- men to go between the ends of the cars to couple or uncouple them. There is another section of the law under which the second cause of action is brouglit. That section provides that it shall APPENDIX G. 651 be unlawful for any railroad company to use any car in inter- state commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for the greater security of the men in coupling and uncoupling cars. The second cause of action charges that a car regularly used in interstate traffic, numbered X-5110, was, on the same day, liauled westerly from Holloway, Ohio, by the defendant com- pany in a train containing interstate traffic, while there was missing from the right-hand side of its "A" end a grab- iron or handhold, and when such end was not provided \\ath secure grab-irons or handholds, and that such car was in that respect defective. Both of the sections to which your atten- tion has been directed were designed for the protection of the life and limbs of railway employees while engaged in the work of interstate transportation. The defendant denies that the coupler on the one car was defective or that the grab-iron on the other was missing, and that it hauled either of such cars in violation of law. This is a general denial of the offenses charged in the amended petition. As a further, and what I shall for convenience call a second, defense, the defendant says the first-named car was duly equipped with couplers of the character required, and the other with a grab-iron ; that at all times after such cars had been so equipped it had exercised due and reasonable care to keep itself informed by inspection and otherwise as to the condition of each of such devices to detect any defects or im- perfections in them, or either of them, and to keep them and each of them in proper repair and working order; and that mthin a reasonable time prior to the movement of such cars it had duly inspected the device in question on each and found it in good repair and working order and free from any observable defects, and did not know at the date mentioned or have cause to believe that sueli devices, or either of them, were out of repair or inoperative. The action is civil, not criminal. The Government must stand on tlie case stated in its amended petition. To obtain 652 FEDERAL SAFETY APPLIANCE ACT. a verdict in its favor it must satisfy you by a preponderance of the evidence, which means the greater weight of the evi- dence, that the facts set out in its respective causes of action are true. A failure to do so is fatal to its right to recover. There being two causes of action, you may, if the evidence justifies it, return a verdict in favor of the Government on one of them, or on both of them, or on neither of them. The defendant is engaged in interstate commerce, which means commerce between different States of the Union. You must determine from the evidence and the charge of the court whether or not the cars in question, or either of them, were used in interstate commerce. It is necessary for the Government to prove, to recover on the first cause of action, that the coupler in question was defective at the time stated, as charged, and that the car to which it was attached was loaded" with interstate traffic, and was hauled, as alleged, over the defendant 's road. To recover on the second cause of action the Government must show that at the time stated the grab-iron mentioned was missing and that the car in question was hauled in and was a part of a train that was used in and contained interstate traffic. It must, to recover on either of the causes of action, prove all the averments therein contained. If it does that, it is entitled to your verdict, unless you find in favor of the defendant on what I have termed its further or second defense to each of its respective causes of action, and to which I shall direct your attention later. The Government has not charged and it is not necessary for it to prove, or for you to find, that the car mentioned in the second cause of action was loaded Avith interstate traffic, but the Government, to recover, must prove that the car was hauled in and was part of a train which was engaged in transporting merchandise or freight from one State to another. It is conceded that the defendant company had originally equipped the first-mentioned car with a coupler of the kind required by statute and the other car with a grab-iron or handhold. Having done so, it was not absolutely bound to APPENDIX G. 653 insure that the coupler on the one ear and the grab-iron on the other were constantly in good order — that the coupler was ahvays in a workable condition or the grab-iron always in a condition for use. The coupling apparatus on railroad cars is subjected at all times while they are in operation to almost constant strain and wrench and liability to breakage. The handholds are also in use more or less and are subjected to strain and liability to breakage caused by such use. Much of the time cars are connected up in trains running on time schedules and are under the orders of train dispatchers, which must be observed or fatal and disastrous consequences may ensue. Then, again, accidents to couplers or grab-irons, or unknown defects in them, may appear at places more or less remote from repair shops. It is just and reasonable that a carrier should exercise a high degree of care to keep its couplers and grab-irons in proper condition, but it would be unjust and unreasonable to say that, having fulfilled its ut- most duty in that regard, it should be held responsible for a condition which might occur without its fault. What, then, were the duties of the railroad company in the maintenance of the coupler and grab-iron in Avorkable condition and good repair? Having properly equipped the cars in question as required by statute, the railroad company was bound to exercise that reasonable degree of diligence — all reasonable possible en- deavor — to inspect and keep the coupler and grab-iron, re- spectively, in workable condition and repair, which would be proportionate to the danger in the use of each, and you are to consider the nature of the defendant's business and the use to which its cars and the couplers and grab-irons thereon are subjected in measuring what would be that rea- sonable degree of diligence in inspecting. The railroad com- pany's duty of inspection was a continuing one. Reasonable care required that the coupler and grab-iron in question should have been inspected at reasonable intervals of time by skillful and competent inspectors who were selected with ordinary care. By ordinary care I mean that care which a 654 FEDERAL SAPETY APPLIANCE ACT. reasonably prudent man would ordinarily exercise under circumstances and in a situation similar to that in vrhich the defendant company found itself. If you find from the evidence that the Government has proved that the first of these cars was loaded with interstate traffic, that the other was hauled in a train which was en- gaged in interstate traffic, that on the car first mentioned there was a defective coupler, as charged, and on the car in the second cause of action mentioned the grab-iron was missing, and that tlie defendant was hauling these cars upon its tracks at the time mentioned and as alleged in the amended petition, then the railroad company was bound to prove that it had used all reasonable possible endeavor to perform its duty to discover and correct such defects. If it did this, it is entitled to your verdict. If it failed to do so, your verdict should then be for the Government, on one or both of the causes of action, as the case may be. If the coupler was defective, as alleged, and the grab-iron was missing on October 14, 1907, they each must have become so at some time previous to the date at which the inspectors say they saw such defects in the respective cars, and if the defects existed and the defendant had knowledge of them, or should with reasonable diligence have had notice of them, and with such knowledge, actual or implied, continued without some justifying necessity to haul the car mentioned in the first cause of action, as therein stated, when loaded with goods which were the subject of interstate commerce, or the other car, as charged in the second cause of action, in a train which was hauling interstate traffic, then it violated the statute and your verdict shoidd be for the Government on one or both of the counts, as the evidence may justify. If you find from the evidence that the railroad company started these cars, or either of them, in transit on their journey, the one with a defective coupler, which could have been discovered by the sort of inspection which I have men- tioned, and the other with the missing grab-iron, which could have been discovered by the same Idnd of inspection, then APPENDIX G. 655 the company would be liable and your verdict should be against it on both or either of the counts, as you may find from the facts. If the coupler on the one ear was defective, as alleged, when the car was started in transit on the day mentioned, and the defect was not discoverable by the kind of inspection I have named, or if it was not defective at all, your verdict should, as to the first cause of action, be for the defendant; it should be for the defendant on the second cause of action also, even if the grab-iron was missing from the car therein mentioned, if, by the same sort of inspection, the defect was not discoverable, or if the grab-iron in fact was not missing. If you should find from the evidence that the automatic coupler was defective and out of repair, as charged, on the one car; but that the grab-iron on the other was missing, as alleged ; that on the date named the first ear was transporting interstate traffic and the second was hauled in a train used for transporting such traffic, and that the railroad company used all reasonably possible endeavor in the performance of its duty of inspection to determine whether or not there was any defect in the coupler or the grab-iron, and that, if from such inspection it found no defect, then the railroad com- pany performed its duty and is not liable, and your verdict should be for it on one or both causes of action, as the facts warrant. Portions of the testimony conflict. Was the coupler defec- tive and the grab-iron missing in the manner charged in the amended petition on the 14th day of October, 1907 ? The Government offered two inspectors as witnesses. They tes- tified that they were at Holloway on that date and within a few minutes prior to the departure of the train called first 83, pulled by engine No. 2270, and that they saw and examined car No. 57677, which was in that train. At that time they each, so they say, entered in a memorandum book what they testify they respectively observed, and they have described to you what they say they saw defective in the coupler. They fixed the time of that train's departure 656 FEDERAL SAFETY APPLIANCE ACT. at 9 :50 in the morning, eastern time. These inspectors also say that about 10 :40 in the morning they saw the other train, being second 83, drawn by engine No. 2203, in which train was car No. X-5110, and that it moved out of the yards about 11 :20 in the morning, eastern time. They told you that they saw that the grab-iron in question was missing from the ear and that each made a memorandum as to that. The conductor of the first train, offered as a witness by the defendant, testified that his train moved out of Holloway on the date in question at 6 :35 a. m., and produced his record or memorandum, which he said was made at the time, con- taining an entry of the departure of his train at that hour. The conductor of the second train testified in behalf of the defendant that his train on that date left Holloway at 10 :25 central time, and that he at that time made a record or memorandum of his hour of departure, which memorandum he produced as a mtness. There may have been other evi- dence by one or the other or both of the parties as to the departure of those trains. You wdll remember as to that, as I am not pretending to direct your attention to all the evi- dence or for any purpose other than that of illustration and of bringing to your notice some of the matters which you should consider. Wlio is in error as to the time of the de- parture of those trains ? If the first train departed at 6 :35 in the morning, these inspectors could not have seen the engine, or the car, or the train at all. There is no evidence to show that they were in the location of the train or the car until a few minutes prior to 9 :50 a. m. They gave, how- ever, correctly the number of each of the cars mentioned in the amended petition and of each of the engines which pulled them. The evidence shows that both engines arrived at Lorain on the same day, and that engine number 2270 had in its train at Lorain the car in the first cause of action mentioned, and on the same day, and that engine No. 2270 had in its train that engine numbered 2203 handled the other car. One of the questions to be answered ])y you is, How could the inspectors have gotten the numbers of the engines and the numbers of APPENDIX G. 657 the ears unless they saw them at Hollo way? Are they and their memoranda, or are the railroad cMiployoes and their memoranda, in error? You must take all of the evidence touching the departure and movement of these trains and determine where the truth lies. In reaching a conclusion as to whether the coupler was defective, or the grab-iron missing, you will consider the degree of care with which the Government inspectors and railway employees, respectively, made their respective inspec- tions, and the probability or improbability of mistake therein. Who made the more careful inspection ? You have heard the evidence of the two Government inspectors whose duty it is to examine cars with reference to their safety appliances. The defendant offered as witnesses: conductors, trainmen, and also inspectors whose duty it is to inspect cars, and these employees all detailed what they did in the Avay of inspection. The Government inspectors say they observed a defective coupler and a missing grab-iron. The other witnesses say they did not observe such. One of the defendant's witnesses said that he spent about a minute and a half on a car in his inspection. It is for you to say how thoroughly, in that time, he could inspect it, and whether or not he would learn as much about a car as the other men whose business it is to inspect. How much time other railroad employees spent on each car does not appear in the record, as I recall it, but, as to that, use your oa\ti memories. Another one said he inspected the bolsters underneath, the couplers, the hand- holds, the whole car. You must decide for yourselves whose testimony you \nll accept as regards the condition of the two cars, giving to each witness such credibility and weight as you think he should have. Something has been said iu your hearing about the in- spectors not having directed the attention of the railroad employees to what they say was the defective condition of the coupler and grab-iron, respectively. They were not re- quired to direct the railroad employees' attention to any defects. It was no part of their duty to do so. 658 FEDERAL S.^J^ETY APPLIANCE ACT. Evidence was given that on or about October 12, 1907, car No, X-5110 was repaired, a new truck bolster being applied, and that both cars in question were inspected at Lorain, one on the 20th, as I remember, and the other on the 26th of the month, and that neither of the cars were shopped, as it is called, betw^een those respective dates and the 14th. The value of that testimony is to be determined by you. The real question is. What was the condition of ihe cars on the 14th? Was there on that date, as is charged, a defective coupler on the one and a missing grab-iron on the other ? You must answer that from all the evidence that was given touch- ing upon that issue. Some, perhaps all, of those who testified in behalf of the defendant, and some of those who testified for the Govern- ment, are railroad employees. Two of the witnesses offered by the Government, who were called detectivss in the course of the argument, are inspectors in the employ of the Inter- state Commerce Commission. It is necessary that the railroad company should employ men to do its business. It is also necessary that the Government should employ men to look after its business and to see that the law is observed. These men who testified before you, whether they ire railroad em- ployees or inspectors, are not to be disbelieved simply because they v/ork for the defendant or are in the Govern- ment's service, as the case may be. You are the judges of the weight of the evidence and the credibility of witnesses. Taking each of these witnesses as you saw him, and his evi- dence as you heard it, consider his intelligence, his means and opportunities of knowledge concerning that about which he testified, whether or not he is corroborated or uncorroborated, the probability or improbability of his statements, his conduct on the witness stand, and all other facts disclosed by the evidence, and then determine the degree of credibility to be given to him. What the government inspectors state they saw regarding the coupler and the grab-iron was eharacterizbd in argument APPENDIX G. 659 as positive testimony. Other witnesses, in the employ of the defendant, testified that they did not see any such defects, and this has been characterized by the Government's counsel as being negative testimony, while defendant 's counsel insist that it is positive. Positive testimony is to be preferred to negative testimony, other things being equal. That is to say, when a credible witness testifies to having observed a fact at a particular time and place, and another equally credible witness testifies to having failed to observe the same fact, having the same or equal opportunity so to observe such fact, the positive declaration is to be preferred to the negative in the absence of other testimony corroborating the one or the other. But what may be negative testimony under one state of facts is not negative under another. For instance, a man might testify that he did not hear a whistle blown or bell rung. He is testifying to a negative circumstance and his testimony perhaps is not entitled to as much weight as the testimony of a man who says he did hear; but if it was his duty to hear the whistle or the bell, then if the wit- ness says he did not hear it, while his testimony is negative in character, yet because it was his duty to hear, other things between the witnesses being equal, his testimony should be given the same weight as the testimony of ths man who said he heard the bell or whistle. Now, it is the same with the testimony in this case. If you find it was the duty of the inspectors on the part of the railroad company to inspect the cars and that they did inspect them and did not see the defective coupler or the missing grab-iron, that is not such negative testimony as not to receive the same consideration, other things being equal between the witnesses, as positive testimony. It would dien, as would that of the Government inspectors, be positive testimony. When you retire to the .iury room yon may select one of your o^Ti number as foreman. You will understand that you are to act impartially as between the parties. The fact that one party is the Government and the other a railroad company should not cause you to discriminate in the slightest 660 FEDERAL SAFETY APPLIANCE ACT. against either. They stand on an absolute equality. The law is no respecter of persons. Deal conscientiously with the par- ties. You may retire. UNITED STATES v. WABASH-PITTSBURGII TER- MINAL RAILWAY COMPANY. (United States District Court, Western District of Pennsylvania.) November 3, 1909. 1. The maintenance of one grab-iron or handhold on each side of the car near the "B" end is not a compliance with the Federal Safety Appliance Act, as the necessity of having such grab-iron or hand- hold upon each side of the car near each end of the car is fairly contemplated by the very language of the Act. John H. Jordan, TJnited States Attorney, and Monroe C. List, special assistant United States Attorney, for the United States. James R. Miller and H. F. Baker, for the defendant. Orr, District Judge (charging jury) : This is an action of assumpsit brought by the United States against the Wabash-Pittsburgh Terminal Railway Company to recover from the railway company for the violations of an Act of Congress which is entitled, "An Act to promote the safety of employees and travelers upon railroads by com- pelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes." The fourth section of the Act says, "that from and after the 1st day of July, 1895, unless other- wise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not equipped with secure grab- irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling the cars." Most of the causes of action in this complaint relate to the section that I have just read. Some relate, however, to an- APPENDIX G. 661 other section of the Act, being Section 2, wherein it is pro- vided that "on and after the 1st of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving inter- state traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." And the Act provides that "any common carrier using or carrying or per- mitting to be hauled or carried on its line any car in violation of the provisions of this Act shall be liable to a penalty of ,$100 for each and every such violation," to be recovered in a suit such as is now before the court. It is admitted that the defendant is a common carrier en- gaged in interstate traffic; that the cars upon which the alleged defects appeared were engaged in the transportation of interstate commerce, and it is not denied that the cars, to which your attention has been called by initials and numbers, were defective in the matter of couplers ; and it is not denied by cAddence other than a plan that has been introduced by consent, that the cars did not have grab-irons and handholds as required by the Act of Congress ; but the defendant insists that the cars without the grab-irons and handholds on the sides, as testified by the witnesses, were not constructed and maintained in violation of the terms of this Act of Congress. Defendant insists that, because it has one grab-iron or hand- hold on each side of each car near the "B" end, where the coupling is to take place, the law has been complied with and that it is not necessary to have a grab-iron or handhold upon the side of each car near the other end of the car, the "A" end, as it has been explained to you. Now, I hold, and so instruct you, that the maintenance of one grab-iron or handhold on each side of the car near the "B" end thereon is not a compliance with the Act of Con- gress. I think the necessity of having such grab-irons or handholds upon the sides of the car near either end of the car is fairly contemplated by the very language of the Act, because it contemplates in this language, "secure grab-irons 662 FEDERAL SAFETY APPLIANCE ACT. or handholds in the sides of each car." It contemplates, it seems to me, although it is not exactly plain, that the side of each car ought to have juore than one grab-iron or handhold, contemplated by the very language of the Act, because it con- templates in this language, "secure grabirons or handholds in the sides of each car." It contemplates, it seems to me, although it is not exaxctly plain, that the side of each car ought to have more than one grab-iron or handhold. I instruct you, under the evidence, to find a verdict for the plaintiff, the United States, for $1,200 for the causes of action. UNITED STATES v. PENNSYLVANIA RAILROAD COMPANY. (United States District Court, Western District of Pennsylvania.) Xovember 3, 1909. 1. It is imperative that tlie couplings on both ends of every car use! in interstate commerce should be capable of being operated in the manner intended by the Fevleral Safety Appliance Act, so as to make it uimecessary for an employee to go between the ends of the cars. 2. It appears that the car involved in this case was in control of a crew of the Panhandle Railway Company, but it was hauled, and permitted to be hauled, over the tracks of the line of the defendant in a defective condition toward its destination: Held, That the defendant is liable fcr the statutory penalty. 3. Reasonable care, or the utmost care, on tlie part of the railroad company, will not excuse it from liability under the Safety Appli- ance Act. It is not necessary to prove willful negligence, or any negligence at all, on the part of such carrier in order to make it liable for the penalty. John TI. Jordan, Uniied States attorney, and Monroe C. List, special assistant United States attorney, for the United States. Patterson, Sterrett & Aciieson, for the defendant. Orr, District Judge (charging jury) : The case that has been tried before you is a case by the United States against the Pennsylvania Railroad Company to recover a penalty provided by the Safety Appliance Act, as APPENDIX G. 663 amended and passed by Congress. Whether or not that Act meets with your approval or mine is not the question. It is a question of whether or not there has been a viohition of that Act, and whether or not iinder the evidence in this case the defendant has been g^uilty of that viohition. The Act was passed with a view, I presume, of doing some- thing to prevent injuries to trainmen. It lias been the ex- perience of us all — more in times past, perhaps, than in thn present — that when we would shake hands with a railroad employee, oftentimes, especially in and about the yards, we would find that the hand was not all there, and we cannot help but appreciate that with the loss of a portion of such a valuable member as the hand, a source of wealth to the United States Avas diminished ; and therefore Congress under- took, as I say, to pass an Act requiring railroads to conform to certain provisions, and imposing penalties if they did not so conform, and authorizing a suit to be brought, such as this, to recover those penalties where the Act had been violated. That Act provides that "it shall be unlawful for any common carrier to haul or permit to be hauled or used on its line, any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars," and it provides that for each offense such railroad may be liable to pay the sum of $100. I say to you that Congress had power to pass this Act, so far as it related to interstate commerce, and that is all it pretends to relate to. By that Act there is imposed an im- perative duty upon each railroad company engaged in inter- state commerce ; that is, commerce between the states and not intrastate commerce, within the state, to comply with the provisions, and if a car is not equipped \dth couplers — ^the plural is used — coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars, then the railroad company is liable. And I say to you that it is not material to this case that the car to which the defective couplings may be attached is not de- 664 FEDERAL SAFETY APPLIANCE ACT. fective, and that the two cars may be separated by the use of the coupling on the one car that is not defective ; but it is imperative that the couplings on both ends of each car should be capable of being used in the manner intended by the Act, so as to prevent a person from going between the cars. It is charged in this case that the Pennsylvania Railroad Company, on or about the 17th of November, 1906, permitted a train to leave its yards at Pitcairn, in which there was a car used in interstate commerce, that car, I believe, being bound to St. Louis, or in that neighborhood. It is true it appears that the car was in control of a crew of what is known as the Panhandle Railroad Company ; that is, the Pittsburgh, Cincinnati, Chicago & St. Louis; that that was the point of delivery by the Pennsylvania Railroad — to the Panhandle Railroad — of this freight and of this car. But it also appears that car left the Pitcairn yards and was hauled and permitted to be hauled over the tracks of the line of the Pennsylvania Railroad Company on toward its destination. Now, it is not disputed that this car was defective in that the coupler on the "B" end had a broken clevis and clevis pin. That being the case, the Pennsylvania Railroad Com- pany is liable to a penalty. I say to you, as a matter of law, that reasonable care or the utmost care on the part of the railroad company will not excuse the company from liability under this Act. It seems a hard rule, but it is a rule that is laid down in this Act, and that ride must be enforced in order to accomplish the purposes intended by Congress when the Act was passed, and I say to you that willful negligence is not necessary to be shown on the part of the railroad company, or any negligence at all on the part of the railroad company, except to show that a car used in interstate commerce was not equipped in accordance w'ith the provisions of this Act of Congress. There is no dispute of fact in this case tliat I can see, and I therefore direct you to find a verdict for the plaintiff in the sum of $100, being the amount of the penalty prescribed by the Act. APPENDIX G. 665 UNITED STATES v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY. (United States District Court, Xorthern District of Illinois.) December 27, 1909. 1. The statute provides that interstate cars shall have secure grab- irons or handholds on the ends and sides of each car. The only question arising in this case was whether the coupling lever con- stituted a secure grab-iron or handhold on the end of the car, as the statute has not definitely ajid distinctly defined what is a secure grab-iron or handhold. It is for the jury to answer that question and determine whether or not the coupling lever that was provided was a secure grab-iron or secure handhold ■«athin the meaning of the statute. 2. The mere fact that the coupling lever was used for the coupling and uncoupling of cars was no reason why it could not be used as a grab-iron, always assuming that it was so placed and was of such material and such size that it did constilute a secure grab-iron or handhold. 3. A suit for penalty under the Federal Safety Appliance Acts is ci\il in its nature, and the verdict should be brought in upon the preponderance of the evidcnc<:\ The phrase "preponderance of the evidence" discussed and defined. 4. The jury should not cast out the testimony of witnesses for the United States because they are inspectors in the employ of the Interstate Commerce Commission: nor sliould they cast out the testimony of the defendant's witnesses because they are in thf; employ of a railway company; but all those things are to be taken into consideration by the jury in determining the probable weight which should be given to the testimon3\ Edwin W. Sims, TJniied States attorney, and Harry A. Parkin, assistant United States attorney, for the United States. Robert Dunlap, Lee F. English, and James L. Coleman, for the defendant. Landis, District Judge (charging jury) : In this suit the United States seelcs the recovery of $100 as a penalty claimed by the Government to have been incurred by the Atchison, Topeka & Santa Fe Railway Company, de- fendant, by reason of the failure of the defendant company to comply with a certain statute of the United States. That statute provides that it shall be unlawful for any railroad 666 FEDERAL SAFETY APPLIANCE ACT. coiiipany to use any car in interstate commerce that is not provided with secure grab-irons or handholds on the ends and sides of each car for greater security to men in coupling and uncoupling cars. In this case you have nothing to do with any controversy as to whether or not the car in question was being used in interstate commerce. It was. The only ques- tion here is whether the coupling lever v/hich the witnesses Jiave testified about was so placed, was of such size and strength, as that in its condition and the position in which it was at the time in question it constituted a secure grab-iron or handhold on the end of that car. Vfhat is a secure grab- iron or handhold the statute ha^s not definitely and distinctly defined. It is for you to answer that question and determine whether or not this coupling lever that was provided was a secure grab-iron or secure handhold within the meaning of this statute. If it was, then your finding should be in favor of the defendant, for the mere fact that the coupling lever was used for the coupling and uncoupling of cars was no reason why it could not be used as a grab-iron, always assuming that it was so placed and was of such material and such size that it did constitute a secure grabiron or handhold. If you find that it was not, then you will find against the defendant. Now, in this case, which is a civil case, the rule is that if the evidence shows by a preponderance that this coupling lever was not a secure grab-iron or handhold, as those terms are used in this statute, then the defendant is guilty. If there is no preponderance of the evidence, that is to say, if the evidence is evenly balanced and you cannot say on which side is the preponderance, then your verdict must be in favor of the defendant, and ''not guilty." If the preponderance of the evidence is for the defendant, then your verdict must be "not guilty." In this respect this case differs from a case which all of you, or some of you, on a recent occasion, heard in the criminal branch of this court. You will recall that in that case the rule which the court defined to you as applicable was the rule that required the evidence to convince the jury beyond all reasonable doubt of the defandant's guilt before APPENDIX G. 667 a verdict could be returned against the defendant. Not so here. Now, what is meant by a preponderance of the evidence? The best I can say to you as to what the phrase "preponder- ance of the evidence" means is looking over the whole case, all the evidence in the case, considering the testimony of each and all the witnesses, including the stipulation which has been read in evidence as l)eing the statement of what a. witness who was not present here would have testified to had he been called ; looking over all the evidence in the case, sifting out that which is untrue or inaccurate or false, laying hold of that and identifying that which is true and accurate and commends itself to you as being the truth of the situation — on which side is the greater weight of such evidence — in sup- port of the proposition that this thing was not a secure grab- iron or handhold, or in support of the proposition that it was ; or, as I have said before, if there is no weight, then your verdict must be ' ' not guilty. ' ' Now, in determining where this greater weight of the evi- dence is, it will become necessary for you to ascertain who has told the truth. With a view to ascertaining that fact, that is to say, with a view to ascertaining what credit you will give to the testimony of the several witnesses, you will take into con- sideration their interest in the outcome of this lawsuit, or their interest in the subject matter of this lawsuit, in so far as the evidence dicloses any interest on their part, the opportunity which the witness or witnesses h;ive to know about the things respecting which they liave testified, the disposition of the witness or witnesses to speak candidly and freely and frankly and openly in reply to the interrogatories respecting the subject matter under inquiry, the probability, the inherent probability or improbability, of the truthfulness of the wit- nesses' statements — all these things, and such other considera- tions as your experience and judgment as men experienced in the affairs of life suggest to your minds, with a view to de- termining who told the truth and who did not tell the truth. And when you have done this and have determined where the 668 FEDERAL SAFETY APPLLOTCE ACT. truth is, then it is quite likely that you will have determined where "preponderance ' ' is. Preponderance is not a thing that is controlled necessarily by the number of witnesses. The pre- ponderance or greater weight of the evidence is on that side of the controversy where the truth is, and it may be with the fewer witnesses as against the greater number of the witnesses. If anybody has been impeached on the trial of this case, that is to say, if it has appeared that somebody has made a state- ment on the trial of this case contrary to the statements made on another trial or elsewhere on a prior occasion respecting a material matter in this inquiry, the law is, you may dis- regard his entire testimony except in so far as it may be corroborated by other facts, or by facts and circumstances proved on this trial. You have no right to disregard the testimony of any witness merely because he is employed by somebody. You can not cast out the testimony of these two witnesses for the United States because they are inspectors in the employ of the Interstate Commerce Commission; you cannot cast out the testimony of the defendant's mtnesses because they are in the employ of the defendant, or in the employ of other railway companies, though all of those things are to be taken into consideration by the jury in determining the probable weight which you will give to their testimony. Now, in this case the plaintiff is the United States, and the defendant is a railway company. On the question of financial condition, I suppose it may truthfully be said they are both in easy circumstances. So the question of the matter referred to here as to one side being rich makes no difference. It may be that it is proper for me to utter a word of ad- monition against the proposition of your being possibly inclined against the defendant because it is a railway cor- poration. Your services here, the manner in which you have discharged your duties, is evidence to me to the fullest extent that the fact that somebody is being sued that is a corporation is not a fact that imperils that corporation's rights with you. So, if you consider this case as j^ou have other cases, and decide the question on its merits, regardless of who is plain- APPENDIX G. 669 tiff or defendant, and regardless of whether one or both or any are in good financial condition, having in mind no other purpose in the world than to arrive at the truth of the con- troversy, you will have discharged your duty well. D. S. SNYDER v. SOUTHERN RAILWAY COMPANY. (In the Circuit Court of the United States for the Eastern District of Tennessee.) [Affirmed, 187 Fed. 492.] Decided January 21, 1910. 1. The provisions of the Federal Safety Appliance Act as to couplers was intended to apply not merely to those cars which are being used in the movement of interstate traffic at a given moment, but to all cars hauled or used on its line that are customarily and generally employed in moving interstate traffic, or in connection with vehicles used in mo\'ing interstate traffic. 2. A car regularly used in moving interstate traffic, or in connection therewith, ig subject to the provisions of the 'Safety Appliance Act in reference to automatic couplers when used, although at the particular time it is being hauled empty or not in connection wita the movement of interstate traffic. 3. The Safety Appliance Act is a remedial statute, and must be so construed as to accomplish the intent of Congress. Its provisions should not be taken in a narrow sense, nor should its undoubted humanitarian purpose be frittered away by judicial construction. 4. A construction exempting from the operation of the act cars which, although regularly used in interstate commerce, were not being so used at the particular time, would put upon the employee work- ing with such ear the practically impossible burden of ascertaining whether or not a given car was in fact being used in connection with the hauling of interstate traffic at the particular time — that is, of ascertaining the character of its load and that of the other cars in the train — in determining whether or not, in working with it, he would or would not assume the risk arising from its being in a condition which did not comply v.ith the Safety Appliance Act. 5. A car regularly used by an interstate carrier on its interstate line, which is not segi'egated and set apart solely for local traffic, but is regularly and habitually used in the movement of interstate traffic or in connection therewith, is, when used on the carrier's line, subject to the provisions of the Safety Appliance Act in reference to the couplers upon it. 6. The Safety Appliance Act is constitutional. 670 FEDERAL SAFETY APPLIANCE ACT. 7. A car arrived at the Coster yards of the defendant in a defective condition several days before the accident; it had not been re- paired at the Coster shop, where it could have been repaired, but had been hauled away from this repair point en route to the repair shops at Lenoir City, several miles away, for the purpose of being there repaired. Held: (a) When the car was put in use, even to be hauled to another repair shop, after it had been for some time at a repair shop where it could have been repaired, it was being hauled in this defective condition in violation of the Safety Appliance Act. {h) Having undertaken to haul the car away from a repair point, it remained within the provisiions of the act, even although the effort was afterwards made to detach the car and return it to the Coster yard, (c) Having once moved it away from the Coster yard, where it should have been repaired, it was there- after moved at the risk of tlie carrier, so far as the provisions oi the Safety Appliance Act were concerned. 8. Under proof as to the temporary purpose for which the plaintiff went between the cars, the customary method of doing such work, the cliaracter of lookout established ^^'ith the crew available, th'^ time of day, the necessity of moving out the cars as directed, and all the circumstances of the case, the verdict of the jury, involving in effect a finding both that the defective coupling was a proximate cause of the injury and that the plaintiff was not guilty of con- tributory negligence was not against the clear and decided weight of the evidence. 9. A court is always more reluctant to set aside a verdict when it is against the party having the burden of proof, as tlie defendant had in this case, upon the material question of the contributory negligence of the plaintiff. 10. Tn view of the serious character of the injuries, involving great suffering and loss of time and the permanent disability of the plaintiff, disabling him from earning a livelihood in the occupa- tion in which he had been engaged, or in other similar labo'-, the amount of the verdict, $7,500, does not show that the jury was influenced by prejudice or passion, and that it should not on that ground be set aside as excessive. 11. Plaintiff not being guilty of contributory negligence that barred recovery, he was entitled to full compensatory damages, as this suit was not prosecuted under any statute requiring damages to be assessed on the basis of comparative negligence. 12. Eecitals in defendant's records, made by its agents at the time, in the line of their duty, were competent evidence against the company. 13. Evidence as to the customary disix)sition of defendant's cars was. clearly admissible. Pickle, Turner & Kennerly, for plaintiff. JouROLMON, Welcker & Smith, for defendant. appendix g. 671 Memorandum Opinion of the Court. Sanford, Judge, on motion for new trial : I am of opinion that the motion for a new trial should be overruled, for the following reasons : ] . The rules of law applicable to the facts of this case under the Safety Appliance Law were, I think, correctly stated in the charge to the jury. By Section 2 of the Safety Appliance Act of ^March 2, 1893, it was made unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact. By Section 1 of the amendatory Act of March 2, 1903, it was provided that the provisions and requirements of the Act of 1893, relating to automatic couplers, "shall be held to apply to all trains, locomotives, tenders, care, and similar vehicles used on any railroad engaged in interstate commerce * * * and to all other locomotives, tenders, ears, and similar vehicles used in connection theremth. " In Johnson v. Southern Pac. Co., 196 U. S., 1, 21, it was said that this amendatory Act "is affirmative and declaratory, and, in effect, only construed and applied the former act;" and in Schlemmer v. Buffalo Ry., 205 U. S., 1, 10, it was again said that the amendatoiy Act in the opinion of the Supreme Court "indicates the intent of the original act." It was further held in the Johnson case that a dining car regularly engaged in making interstate journeys was equally under the control of Congress under the safety-appliance law v/hen waiting for the train to be made up for another trip. The Chief Justice, in delivering the opinion of the court, said: "It was being regularly used in the movement of interstate commerce and so within the law" (p. 22). In the light of this decision, and in view of the broad language used in the amendatory Act, I think it clear that the provision as to couplers on cars used on the line of an interstate carrier was intended to apply not merely to those cars which are 672 FEDERAL SAFETY APPLIANCE ACT. being used in the movement of interstate traffic at a given moment, but to all cars hauled or used on its line that are customarily and generally employed in moving interstate traffic, or in connection \\dth vehicles used in moving inter- state traffic, and that a car regularly used in moving interstate traffic or in connection therewith, is subject to the provisions of the Safety Appliance Act in reference to automatic couplers when used, although at the particular time it is being hauled empty or not in connection Avith the movement of interstate traffic. This view is, I think, supported by the case of Voelker v. Chicago Ey. Co. (D. C), 116 Fed., 867, 873, the language used in this opinion being approved obiter in United States v. Southern Pac. Co. (D. C), 145 Fed., 438; United States v. St. Louis R. Co. (D. C), 154 Fed., 516; United States v. Chicago Ry. Co. (D. C), 157 Fed., 616; and Chicago Ry. Co. v. United States (C. C. A., 8th Cir.), 168 Fed., 236; and Thornton's Employers' Liability and Safety Appliance Acts, Section 127, page 162, and cases cited. The Safety Appliance Act is a remedial statute, and must be so construed as to accomplish the intent of Congress. Johnson v. Southern Pac. Co., 196 U. S., 1 ; United States v. Central Ry. Co. (D. C), 167 Fed., 893. Its provisions ''should not be taken in a narrow sense." Schlemmer v. Buffalo Ry. Co., 205 U. S., 1, 10. Nor should its undoubted humanitarian purpose be frittered away by judicial con- struction. United States v. Chicago Ry. Co. (D. C), 149 Fed., 486. The construction of the Safety Appliance Act which makes it apply, so far as the provisions for automatic couplers are concerned, to all cars used by an interstate carrier on its line in the movement of interstate commerce or in connection therewith, either specially or regularly, is in accordance with the plain intent of Congress, as indicated by the act, to pro- tect the lives and limbs of the employees of interstate carriers. A different construction, exempting from the operation of the act cars which, although regularly used in interstate commerce, were not being so used at the particular time, APPENDIX G. 673 would put upon the employee working with such car the practically impossible burden of ascertaining whether or not a given car was in fact being used in connection with the haul- ing of interstate traffic at the particular time — that is, of ascertaining the character of its load and that of the other cars in the train — in order to determine whether or not in working with it he would or would not assume the risk arising from its being in a condition which did not comply with the Safety Appliance Act. I therefore conclude that under the terms of the Safety Appliance Act and its amendment, and in the light of the decision above cited, a car regularly used by an interstate carrier on its interstate line, which is not segregated and set apart solely for local traffic, but is regularly and habitually used in the movement of interstate traffic or in connection therewith, is, when used on the carrier's line, subject to the provisions of the Safety Appliance Act in reference to the couplers upon it. So construed, and as applying to cars which are the regular and habitual instruments used in interstate commerce, there can, I think, be no serious question as to the constitutionality of the Act, especially in the light of the opinion in the Johnson case, in which the Safety Appliance Act was applied to a dining car not actually being used at the time in interstate traffic, but regularly used for that purpose. In this connec- tion, however, it may be noted that in certain cases it has T)een held broadly, that the Safety Appliance Act, as amended by the Act of 1903, applies to all cars used by an interstate carrier on its interstate highway — a constiniction broad enough to include even a train of cars segregated and set apart for local traffic only — and that so construed the act is constitutional. United States v. Chicago Ry. Co. (D. C), 149 Fed., 486; United States v. Southern Ry. (D. C), 164 Fed., 347 ; and opinion of Grosscup, circuit judge, in Wabash R. Co., V. United States (C. C. A.), 168 Fed., 1, 8. This, how- ever, involves a more difficult question, both as to the con- struction of the act and its constitutionality, which is not 674 FEDERAL SAFETY APPLIANCE ACT. necessarily involved in the present case, and as to which no opinion is expressed. 2. Under the facts of this case there was no doubt, as I view it, but that the car whose coupler was defective was in regular use by the defendant in its trains for hauling inter- state traffic, and not set apart for purposes of local traffic. Therefore, in my opinion, it was clearly subject to the pro- visions of the Safety Appliance Act, and as the coupler was admittedly defective it was being used in violation of the law, unless its use at the time came, as is claimed by the defendant, within an exception to the Safety Appliance Act in reference to the movement of a car for repairs. However, under the proof in this case it appeared that the car in question had arrived at the Coster yards of the defendant in a defective condition several days before the accident; that it had not been repaired at the Coster shops where it could have been repaired, but had been hauled away from this repair point en route to the repair shops at Lenoir City, several miles away, for the purpose of being there repaired. I think it clear, under the authorities, that when the car was put in use even to be hauled to another repair shop after it had been for some time at a repair shop where it could have been repaired it was being hauled in this defective condition in violation of the Safety Appliance Act. United States v. Chicago Ry. Co. (I). C), 149 Fed., 468; United States v. St. Louis R. Co. (D. C), 154 Fed., 516; United States v. Le- high Valley R. Co. (D. C), 162 Fed., 410, 412; United States V. Philadelphia R. R. (D. C), 162 Fed., 405, 409; Chicago Ry. V. United States (C. C. A., 8th Cir.), 165 Fed., 423; United States v. Atchison Ry. (D. C), 167 Fed., 696; United States V. Southern Pac. Co. (D. C), 167 Fed., 699; United States V. Southern Pac. Co. (D. C, No. 24, 1909). Having undertaken to haul the car away from a repair point, it obviously remained, I think, within the provisions of the act, even although the effort was afterwards made to detach the car and return it to the Knoxville yard for repairs. Ha\'ing once moved it away from the Coster yard, when it APPENDIX G. 675 should have been repaired, it was thereafter moved, within the principle of the foregoing cases, at the risk of the carriers so far as the provisions of the Safety Appliance Act were concerned. Nor does the case come within the exception recognized in the opinion of the circuit court of appeals for this circuit in United States v. Ill Cent. Ry., 170 Fed., 542, as the proof entirely fails to show, either that the defect was one which occurred during transit, or that the utmost dili- gence was used on discovering and correcting the defect ; the proof on the contrary showing great and negligent delay in repairing the coupler after the defect has been discovered. 3. It results that in my opinion there was no error in the charge in respect to the construction and effect of the safety appliance laws or in the refusal to charge the jury as re- quested in the special requests submitted by the defendant. 4. I am further of the opinion that under the doctrine of Voelker v. Chicago Ry. Co. (C. C), 116 Fed., 867, 875; Chicago Ry. Co. v. Voelker (C. C. A., 8th Cir.), 129 Fed., 523, 550; Chicago Ry. Co. v. King (C. C. A., 7th Cir.), 169 Fed., 372; and the definition of proximate cause given in I\Iilwaukee Ry. Co. v. Kellog, 94 U. S., 469, 475 ; Washington R. R. V. Huckey, 166 IT. S., 521, 527; Atchison Ry. Co. v. Calhoun, 213 U. S., 1, 7 ; and Stone v. Railroad, 171 Mass., 536, there was evidence to go to the jury as to whether the defective condition of the coupler was a proximate cause of the injury to Snyder ; and that under the doctrine of Narra- more v. Ry. Co. (C. C. A., 6th Cir.), 96 Fed., 298, 304, and of Chicago Ry. Co. v. King, supra, the question was properly left to the jury to determine whether, under all the circumstances of the case, the plaintiff was guilty of contributory negligence which barred his recovery; and that therefore the defendant's motion for peremptory instructions was properly overruled. See also Toledo R. Co. v. Bartley (C. C. A., 6th Cir.), 172 Fed., 82. 5. Furthermore, under the proof as to the temporary pur- pose for which the plaintiff went between the cars, the cus- tomary method of doing such work, the character of lookout 676 FEDERAL SAFETY APPLIANCE ACT. established with the crew available, the time of day, the necessity of moving out the cars as directed, and all the cir- cumstances of the case, I do not think that the verdict of the jury, involving in effect a finding both that the defective coupling was a proximate cause of the injury and that the plaintiff was not guilty of contributory negligence was against the clear and decided weight of the evidence, and hence I am of opinion that it should not be set aside. j\It. Adams Ry. Co. V. Lowery (C. C. A., 6th Cir.), 74 Fed., 463, 472; Felton v. Spire, 75 Fed., 576 (C. C. A., 6th Cir.). Especially is this true as the court is always more reluctant to set aside a verdict when it is against the party having the burden of proof (Cunningham v. Magoon, 18 Pick. Mass., 13) as the de- fendant had in this case upon the material question of the contributory negligence of the plaintiff. 6. I am likew^ise of the opinion that in view of the serious character of the injuries, involving great suffering and loss of time and the permanent disability of the plaintiff', disabling him from earning a livelihood in the occupation in which he had been engaged, or in other similar labor, the amount of the verdict does not show that the jury was influenced by prejudice or passion, and that it should not on that ground be set aside as excessive. Clearly if the plaintiff was not guilty of contributory negligence that barred recovery, he was entitled to full compensatory damages, as this suit was not prosecuted under any statute requiring damages to be assessed on the basis of comparative negligence. 7. The recitals in the company's records, made by its agents at the time, in the line of their duty, were, I think, competent evidence against the company under the authority of Vicksburg R. R. Co. v. Putnam, 118 U. S., 545, 554; Chateaugay v. Blake, 144 U. S., 476, 483 ; Missouri Ry. Co. v. Elliott (C. C. A., 8th Cir.), 102 Fed., 96; Bank v. Bank, 108 Tenn., 374, 380; 6 Thompson on Corporations, section 7728; 1 Am. & Eng. Enc. Law, 2d ed., 718, note as to "Entries in the Books of a Party," and IG Cyc, 946 as to "memoranda." APPENDIX G. G77 The evidence as to the customary disposition of defendant's ears was also, I think, clearly admissible. An order will accordingly be entered overruling the motion for a new trial. ERIE RAILROAD COMPANY, PLAINTIFF IN ERROR, V. BLANCHE RUSSELL, ADMINISTRATRIX, DEFEND- ANT IN ERROR. (United States Circuit Court of Appeals, Second Circuit.) Writ of error to review a judgment of the Circuit Court, Southern Dis- trict of New York, in favor of the plaintiff in an action to recover damages for injuries resulting in the death of the plaintiff's intestate, Harry Russell, while employed by the defendant railroad company. Decided Decemher 2, 1910. 1. It appears that the defective car in this case was not being hauled at the time of the accident, but was standing upon the switch track for the insertion of the knuckle in the coupling apparatus; Held, That the contention of the carrier that such car was not being used within the contemplation of the Federal Safety Appliance Acts is not sustained. 2. Though the car itself does not appear to have been used in any interstate business at the time of the accident, which occurred during switching operations and not during either the regular west- ern or eastern movement of the freiglit trains, yet the test of the application of the Federal Safety Appliance Acts is the trai>i rather than the car, and the evidence warrants the finding in this case that the trains in which this car moved into and out of Port Jervis, N. Y., included other cars loaded with interstate shipments. Upon these facts; Held, That the Federal Safety Appliance Acts apply. 3. The switchman injured in this case went upon the track to adjust a defective coupler in a car when, without any apparent cause, three other cars which were standing on the same switch, which sAvitch had a slight grade, moved silently do^\^l upon him. inflicting the injuries complained of; Held, That the defective coupler was a proximate cause of the accident. 678 FEDERAL SAFETY APPLIANCE ACT. 4. To hold that the injured switchman was, as a matter of law, guilty of contributory negligence, requires the assumption that the cars which moved down and against tlie switchman moved because h.^ had failed in his duty to break or block them. But this assumption cannot be made. The cars may have been properly blocked and the blocks loosened by the impact with the car in question shortly before the accident. The question of contributory negligence was one for the jury. 5. The remaining questions raised by the carrier disclose no prejudicial error, and the judgment of the circuit court in favor of the plaintiff is affirmed: Stetson, Jennings & RusselI;, for plaintiff in error. John W. Lyon and George A. Clement, for defendant in error. Before Lacombe, "Ward and Noyes, Circuit Judges. STATEMENT OF FACTS. There was evidence in the case sufficient to warrant the jury in finding the following facts which are especially relevant to the questions considered in the opinion. The defendant railroad company is engaged in interstate commerce and owns a railroad extending from Port Jervis, N. Y., to Newburgh, N. Y., and also running into other states. Port Jervis is two or three miles east of the state line be- tween New York and Pennsjdvania. The defendant operates a local freight train between New- burgh and Port Jervis which, when running westerly, carries freight to stations on the road and piclvs up freight going to all points west, including points in other states. On the easterly trip western freight is carried to local points and local freight is picked up for eastern points. On the afternoon of June 21, 1907, the ear in question in this case was brought into Port Jervis in this train billed to the repair shop there. It had a defective coupler; the knuckle being gone. It was empty and had been picked up at Greycourt, a station between Port Jervis and Newburgh. This train on said day carried freight going west of Port Jervis and to different states and one of the cars bore the initials of the Boston and Maine APPENDIX G. 679 Railroad. There was another car in the train which was also in a crippled condition. The train, incliidinf? tlic crippled ears, was left standing on a switcli in the Port Jervis freight yard. Russell, the plaintiff's intestate, was one of the niglit-switch- ing crew in the yard. On this afternoon this crew had begun work drilling out and s\Wtching the cars from tlie different trains which had come into the yard from the east and west. Before supper three cars had been placed on the No. 6 switch in the yard and left standing there. This switch had a slight grade. After supper the switching crew continued work and after some time ran the car in question attached to other cars upon said No. 6 switch. The intention of the switching crew was to repair the defective coupler and after repairing it to couple the train containing this car to the three cars aforesaid which had previously been left upon the switch. In backing up the train this car came in contact with the other three cars, but was subsequently pulled away from them some five or six feet. The switching crew then started to look for a knuckle with which to repair the defective coupler. Knuckles were kept in various places in the yard and the switchmen were accustomed to replace those found missing. Russell, the plaintiff's intestate, was the first to find one and he went in between the cars and attempted to adjust it in the coupling apparatus, but the pin would not fit and one of the other men went to look for another pin. Russell was holding tlie knuckle in place with his back to said three standing cars, when, without any apparent cause, they moved silently down and caught and crushed him, inflicting the injuries from which he died. The car in question was taken the next day on the easterly trip of said local freight train and hauled to Goshen, N. Y. OPINION OP THE COURT. NoYES, Circuit Judge (after making the foregoing statement) : The first question in the case is whether the acts of the de- fendant constituted a violation of the Federal Safety Ap- 680 FEDERAL SAFETY API'LIANCE ACT. pliance Act (Act of ]\rarcli 2, 1893, as amended March 2, 1903), the relevant sections of which are printed in the footnote.*^ The first phase of this question is whether the car with the defective coupler was, at the time of the accident, in w.se within the meaning of the amended act. It is pointed out that the car was not Ijeing hauled at the time of the accident, but was standing upon a switch track for the insertion of the knuckle in the coupling apparatus, and it is contended that it was not then being used within the contemplation of the statute. We think upon the authority of Johnson v. Southern Pacific Co. (196 U. S. ]), that this contention is not well founded. The car with the defective coupler was not withdra\\Ti from use. Although billed to the repair shop, it was not sent there, nor was it sent to any place used especially for maldng repairs. The insertion of the knuckle was a simple matter. The car was stopped only temporarily, and it was intended to couple it to the other cars as soon as repaired. These facts seem clearly to distinguish this case from those cases cited in the defendant's brief, where accidents occurred when cars had been sent to repair shops or placed upon dead tracks used for repair purposes. The second phase of the question of the application of the act is whether the car at the time of the accident was em- ployed in interstate commerce. a Act of 1893, sec. 2. That * * * it sliall l)e imlawful for any such common carrier to haul or permit to be liauled or used on its lines any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars. Amendment of 1003, sec. 1 * * *. The provisions of * * * (the Safety Appliance Act) » * » shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type, and the provisions and requirements hereof and of said acts relat- ing to train brakes, automatic couplers, gi-ab-irons, and the height of drawbars shall bo held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate com- merce. * * ♦ APPENDIX G. 681 The car itself does not appear to have been used in any- interstate business at the time in question. It was hauled empty from a New York point to Port Jervis in the same state, and the following day in like condition was hauled to another New York point. But the test of the application of the statute is the train rather than the ear, and Ave are of the opinion that there was evidence warranting a finding that the train in which his car moved into Port Jervis included other cars loaded with interstate shipments, and that the train in which it moved out of Port Jervis was of a similar character. Upon these facts it is held that the Safety Appliance Act applies. United States v. International, etc., R. Co. (174 Fed., 638) ; Chicago, etc., R. Co. v. United States (165 Fed., 423) ; United States v. Wheeling, etc., R. Co. (167 Fed., 198) ; United States v. Erie R. Co. (166 Fed., 352). The fact that the accident occurred during s\Aatching operations and not during either the regular western or eastern movement of the freight trains does not affect the application of the statute. Johnson v. Southern Pacific Co., supra; Wabash R. Co. v. United States (168 Fed., 1). Cer- tainly if the car came into Port Jervis in the afternoon in an interstate train and moved out of Port Jervis the next morning in another interstate train the character of its use was not changed during the switching operations at night. Rosney v. Erie R. Co. (135 Fed., 311) is distinguished, from the fact that in that case there was no proof of use in interstate commerce. The second question of importance in the case is whether the trial court properly submitted to the jury the question whether the presence of the defective coupler was a proximate cause of the accident. It is urged with much force that that which caused the injury to the plaintiff's intestate was the unexpected move- ment of the three ears — an act unrelated to and independent of the act of repairing the coupler. Indeed, were the question to be decided free of authority, a majority of the court would have difficulty in holding that the repair of the coupler was 682 FEDERAL SAFETY APPLIANCE ACT. a part of a coupling operation, and bore such a relation to the impact of the cars that the necessity for such repairs was an efficient cause of the accident. But still the reason why Russell went to the place where he was injured was the defective coupler, and if he had not gone there the accident would not have occurred. Moreover, it appears that it was intended to couple the car with the defective coupler to the standing cars as soon as the coupler should be repaired. This being true, and in view of the de- sirability of uniformity in the decisions of the courts of the different circuits in interpreting this act, we feel it our duty to follow the decision of the Circuit Court of Appeals for the Eighth Circuit in Chicago, etc., R. Co. v. Voelker (129 Fed., 522). The facts in that ease are very similar to those appearing here. The person injured went upon the track to adjust a defective coupler in a car when without warning, another car was shoved down upon him, inflicting the injuries complained of. It was held that the defective coupler was a proximate cause of the accident. In Chicago Junction R. Co. v. King (169 Fed., 372), the facts even more closely resembled those appearing here, and a judgment for a person injured by reason of a defective coupler was affirmed, although the question of proximate cause does not appear to have been particularly considered. See also the decision of this court in Donegan v. Baltimore, etc., R. Co. (165 Fed., 869). The third question in the case is whether the plaintiff's intestate was, as a matter of law, guilty of contributory negligence. An affirmative answer to this question requires the as- sumption that the cars which moved down and against Russell moved because he had failed in his duty to brake or block them. But this assumption cannot be made. The cars may have been properly blocked and tlie blocks loosened by the impact wdth the car in question shortly before the accident. The question of contributory negligence was one for the jury. APPENDIX G. 683 The remaining questions raised by the defendant disclose no prejudicial error. The judgment of the circuit court is affirmed. UNITED STATES v. BALTLMORE & OHIO RAILROAD COMPANY. ( In the Dictrict Court of the United States for the District of Indiana. ) Decided December 13, 1010. (Syllabus.) 1. If the uncoupling chain on a car coupler is so long that in the ordinary usage of the same chain will become kinked in the head of the coupler in such a manner as to necessitate a man or men going between the ends of the cars to couple or uncouple, then such coupler is not equipped in compliance with the Federal Safety Appliance Act. 2. Two witnesses for the plaintiff having testified to the fact that a grab iron was missing from a car at a certain time, and one witness for the defendant having testified that at a subsequent time the same car had such a grab iron, the jury were instructed that the statements of said witnesses could Ix; reconciled and that it was their duty to reconcile them and to find that no witness had testi- fied falsely as to the matter. Charles W. Mh^ler, United States attorney; Clarence W. Nichols, assistant United States attorney; and Roscoe F. Walter, special assistant United States attorney, for plaintiff. Samuel Miller, for defendant. instructions to the jury. Anderson, District Judge (orally) : Gentlemen of the jury, this is a civil action, and in tliis court you are the judges of the weight of the evidence and of the credibility of the "v\^tnesses; you are to determine the facts proved, but you are bound by the law as it is given to you by the court. 684 FEDERAL SAFETY APPLIANCE ACT. The question you liave to try is within a very narrow com- pass. In the first place, you have only to consider, as far as your deliberations are concerned, but three of the counts or paragraphs of this complaint, i. e., counts 2, 5, and 7. The defendant concedes that the Government has made its case as to counts 1, 3, 4, 6, and 8, and only raises a question as to counts 2, 5, and 7. I will call your attention to these counts 2, 5, and 7, the ones that you will have to consider. In substance count 2 alleges that in violation of the Act of Congress known as the Safety Appliance Act, passed at a particular time and amended, said defendant on or about November 19, 1908, hauled on its line of railroad, Chicago, Lake Shore & Eastern, car No. 10364 consigned to a point within the state of Pennsylvania. The complaint further alleges that on or about said date the defendant hauled said car from Garrett, in the state of Indiana, in an easterly direction, wdthin the jurisdiction of tliis court. As to these facts there is no dis- pute. The complaint then alleges that when the car was thus being hauled "the coupling and uncoupling apparatus on the 'A' end of said ear was out of repair and inoperative, the uncoupling chain being kinked on said end of said car, thus necessitating a man or men going between the ends of the cars to couple or uncouple them, and when said car was not equipped vdth couplers coupling automatically by impact," etc., alleging that this was done in violation of the statute. Count 5, after alleging the statute, proceeds to aver that the defendant on or about November 19, 1908, "hauled on its line of railroad one car, to-wit, its own, No. 41861, said car being one regularly used in the movement of interstate traffic and at the time of said violation hauled in train con- taining interstate traffic ; one car in said train, to-wit, Chicago, Milwaukee & St. Paul, No. 32514, containing interstate traffic, to-wit, flour consigned to a point within the state of Virginia." You will have no trouble about any of these questions. There is no dispute about them. APPENDIX G. 685 Count 5 further alleges "that on or about said date de- fendant hauled said car, its own, No. 41861, as aforesaid, over its line of railroad from Garrett, in the state of Indiana, in an easterly direction, within the jurisdiction of this court." There is no dispute about that fact. Count 5 then alleges that wliile the car was thus being hauled "the coupling and uncoupling apparatus on the 'B' end of said car was out of repair and inoperative, the top clevis to the uncoupling chain being missing on said end of said car. ' ' Now, the only question for you to determine under count 5 is whether that top clevis was missing. Count 7, after averring that the defendant hauled over its line Mobile & Ohio car No. 8721, used in the movement of interstate traffic, to-wit, coal, consigned to a point in Illinois, and that the defendant hauled the said car from Garrett in a westerly direction, avers that the grab-iron or handhold on the left-hand side of the "A" end of the car was missing; and that is the only question that you have to determine on that count. So that the only question under count 2 is : "Was the coupling defective by reason of the kinked chain, as averred ? Under count 5 : Was the top clevis of the uncoupling chain missing on that car? And under count 7 the only question for you to determine is : Was the grab-iron, as averred, missing ? The statute, section 2, provides that after a certain date : "It shall be unlawful for any such common carrier to haul, or permit to be hauled or used on its line, any car used in moving interstate traffic, not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the eai-s;" and as to the grab-irons, from and after the same date : "It shall be unlaw^ful for any railroad company to use any car in interstate commerce that is not provided with secure grab- irons or handliolds in the ends and sides of each car for greater security to men in coupling and uncoupling cars." 686 FEDERAL SAFETY APPLIANCE ACT. These two sections cover the three counts that you will have to consider. The first section that I read to you covers the first two, and the second section covers the last count; that is, count 7. Now, as I have said, there is not any question about these ears being used in interstate commerce. There is not any question about the railroad company being engaged in inter- state commerce. The only questions for you to determine are, as I have indicated, as to the defective couplers under counts 2 and 5 and the missing grab-iron under count 7. Now, gentlemen of the .jury, as I have said, you are the judges of the weight of the evidence and the credibility of the witnesses. You are to determine what the facts proved are. You are bound by the law as it is given to you by the court. This is a civil action. Before the Government can re- cover it must establish all the material allegations of the counts by a fair preponderance of the evidence. By a fair preponderance of the evidence is meant the greatest weight of the evidence ; not necessarily a greater number of witnesses. In determining the weight which you will give to the testi- mony of any witness who has appeared before you, you will take into consideration his intelligence or want of intelli- gence, his opportunity to know the facts about which he testifies, and his interest, if any, in the result of the suit ; and, having taken these things into consideration, it is for you to determine which witness you will believe and which wit- ness you will not believe. If you find for the plaintiff on the three counts that are in issue, then your verdict should be: "We, the jury, find for the plaintiff, which will cover the whole eight counts. If you find that the Government has not by a fair preponderance of the evidence sustained either counts 2, 5, or 7, then your verdict should be : We, the jury, find for the plaintiff on the five counts I have spoken about, as to which there is no dis- pute, namely, counts 1, 3, 4, 6, and 8, and such others as you find the Government has established, or find in favor of the APPENDIX G. 687 defendant, on such of counts 2, 5, or 7, as you bolicvc the Government has failed to establisli. Now, gentlemen, I have said to you that you are the exclu- sive judges of the facts proved and of the credibility of the witnesses, but on account of the number of counts here, and on account of the questions presented here, about which there is no dispute, I think it is proper that I should explain to you what I think about the evidence as to these counts 2, 5, and 7, explaining to you that you are not bound by anything I may say as to questions of fact. You will notice that the first count about which there is any dispute, count 2, is the one which alleges that there was a kinked chain. You will recall the testimony in regard to that. The Government 's witness says that he saw that cliain kinked ; that he undertook to manipulate that brake and found it was impossible because of the kink. On the other hand, one mt- ness for the defendant, as I recall, testified that the chain was too long, and it did kink, but that he succeeded in pulling it out. Now, it is not difficult for a person who is used to weighing evidence to determine where the truth lies there, and you do not have to impute perjury to anybody. The witnesses for the railroad, themselves, testified that the chain kinked because it was too long, which, to my mind, is evidence sufficient to sustain the verdict on that count — to sustain a finding that the coupling was defective, and was not such a coupling as would uncouple by this appliance ^^^thout the necessity of a man going in between the cars. But that question is for you to decide. You may conclude to believe the witnesses for the defendant and disbelieve the -witnesses for the Government, if you see fit to do so, or if in your judgment it is your duty to do so, then your verdict should be for the defendant on that count. That, of course, depends simply on the question which witnesses you believe and which you will not believe. When it comes to the clevis matter alleged in count 5, I will call your attention to the fact that the averment in 688 FEDERAL SAFETY APPLIANCE ACT. count 5 is that the clevis was gone, was missing, and two witnesses for the Government testified to that fact. Now, the testimony of the witness on the part of the defendant was that he supplied a bolt in the clevis. That does not meet the case of the Government at all, in my judgment. It is for you to decide. Next, as to the missing grab-iron. If I understand the testimony, the two witnesses for the Government testified positively that this grab-iron was gone, was missing ; that there was no grab-iron when it was moved over the line from the yards in interstate commerce. The only testimony, as I understand it — I may be mistaken about that — on the part of the defendant is that at a subsequent time, when some witness for the railroad company examined this car, it had a grab-iron. Of course, these two statements can be entirely reconciled, and it is your duty to reconcile them and, in that event, to find tliat no witness has testified falsely about it. It may be that there was no grab-iron on tlie car when it left Garrett and that there was a grabiron on it at the time this witness testified he saw it. On account of the number of counts and the possibility of some confusion about them, I thought it was my duty to explain to you just what the situation is as to these three counts, reminding you again that it is for you to decide the facts. You do not have to take my view of what the facts are. You are bound by what the court says as to the law; but you must determine the facts without reference to what the court thinks about the evidence. So, if you, in view of these instructions, find that the Gov- ernment has, by the fair preponderance of the evidence — that is, by the greater weight of the evidence — proved the ma- terial allegations of counts 2, 5, and 7, which relate, respec- tively, to the kink in the chain, the missing clevis, and the missing grab-iron, then your verdict should be: We, the jury, find the defendant guilty. If you find that the Govern- ment has failed to establish the facts as to either counts 2, 5, or 1, then your verdict should be: We, the jury, find the APPENDIX G. G8I) defendant guilty on those five counts I have menti()n<'(l, and such of those three counts as you find tlie defendant guilty, and not guilty on such counts as you find the Government has failed to prove to your satisfaction by a fair preponder- ance of the evidence. Forms of verdict will be sent out with you. P. E. DAILEY V. SOUTHERN RAILWAY COMPANY. (In the Circuit C5ourt of the United States for the Eastern District of Tennessee. ) Decided January 10, 1911. 1. Liability of defendant because it used cars having bumpers when plaintiff was injured can not be considered by the jury, because the record herein disclosed that plaintilf had full knowledge of this fact, and under the doctrine of assumption of risk could not recover; and the rule of defendant that employees must not go between cars while they are in motion should be disregarded here, because the evidence shows that plaintiff was not injured by reason of moving cars. 2. The burden of proof herein is upon plaintiff to show: (a) Tliat the interstate car on which he was hurt would not uncouple %vithout a man going between the cars; (&)that such coupler would not work when operated in a proper way; and (c) that the failure of the coupler to work was the proximate cause of the injury. Under such state of facts defendant's failure to have a coupler equipped according to the Federal Safety Appliance Acts would be an act of negligence. 3. If plaintiff in the discharge of his duty went between the cars on account of the defective coupling in order to make the cmiiiling and was injured, defendant would be liable; but not so if plaintilf went between the cars in order to turn a safety cock. 4. If the fact that a coupler does not work, as required by the Safety Appliance Acts, is due to some temporary condition in which the ear is placed with reference to otlier cars, or to the movement of the car or of the train, which could not be avoided in the highest state of the art, the mere fact that the coupler would not work under those conditions would not render defendant liable; but the burden of proving such conditions would be on defendant. 5. While the Safety Appliance Acts prohibit assumption of risk as a defense, the defense of contributory negligence has not been taken 690 FEDEEAL SAFETY APPLIANCE ACT. away. Those acts do not excuse an employee from a failure to use ordinary prudence in his o\\ti behalf, where he knows of the ab- sence of the proper appliances. After having knowledge that the appliances are not in the condition required by the Safety Appliance Acts if the employee is g^iilty of contributory noglij^ence, which operates as one of the direct causes of the injury which he receives, then he cannot recover. C. Contributoiy negligence defeats any recovery at all; it does not cut doAvn or decrease the amount of the verdict, except in certain cases not involved here; but the burden of proof in contributory negli- gence is on defendant. 7. When plaintiff shows that the appliances were defective and in viola- tion of the Safety Appliance Acts, it is not incumbent upon him to go further and point out in what respect the appliances were de- fective or out of repair. Webb & Baker, for plaintiff. JouEOLMON, Welcker & Smith, for defendant. INSTRUCTIONS TO JURY. Sanford, District Judge (charging .jury) : The plaintiff, Perry E. Dailey, sues the defendant for per- sonal injuries, which he received in the year 1908 while in the employ of the defendant company. The defendant has moved the court for peremptory instructions. That motion, I neglected to say, is overruled, and I submit the case to the jury in certain aspects of the case. In doing so I wish to say, however, that my action in overruling this motion is not intended to be taken by you as meaning that the plaintiff is entitled to a recovery. It merely means that there is such a conflict in the evidence that I think it is a question to be passed upon by the jury instead of the court. In so far as the plaintiff seeks a recovery on account of the fact that there were bumpers on the car, I withdraw that question from your consideration ; that is to say, I charge you that under the undisputed e^^dence, if there be any evi- dence of negligence on the part of the defendant in regard to the bumpers, the same evidence would also show that the APPENDIX G. 691 plaintiff had full knowledge of its having cars on its line with bumpers, and, under the doctrine of assumption of risk, in- would be held to have assumed that risk, and consequently could not recover on that ground. So you will eliminate from consideration any question of liability in so far as relates to the bumpers on this car. Also as to the question presented by counsel with reference to the rule of the company, being general rule No. 10. This rule has no application to the facts in this case, as it is in proof that this plaintiff did not go in between the cars while in motion and that he was not injured by reason of the motion of tlie engine, and you may hence disregard that rule in your consideration of the case. I do, however, submit the case to you on the question of the Safety Appliance Act. There are three questions that arise under this proof that are to be passed upon by you — ^that is, if you find some of them in favor of the plaintiff you may have to pass upon all of them, but if you find some of them in favor of the defendant you will not have to do so. I will give you these questions in the order in which they should be considered. In the first place, however, I will say that this suit being a civil case the duty is on the plaintiff to make out his case by a preponderance of the evidence. The rule is not the same in civil as in criminal cases, wherein the case must be made out beyond a reasonable doubt, but the plaintiff must establish his case by a preponderance of the evidence. And by a pre- ponderance is meant that he must make out his case by the greater weight of the evidence, to be determined not merely by the relative number of witnesses testifying as to any particular fact, but by the weight or value of the evidence as it satisfies your minds. Unless, therefore, upon a con- sideration of the whole evidence, you believe that the plaintiff has established the material facts necessary to make out his case by a preponderance of the evidence, your verdict should be for the defendant ; and if you believe either that the weight 692 FEDERAL SAPETY APPLIANCE ACT. of the evidence is equally balanced, or that it preponderates in favor of the defendant, then your verdict should be for the defendant. In the first place, the plaintiff must prove by the greater weight of the evidence that there was a violation of the Safety Appliance Act. The Safety Appliance Act enacted by Con- gress, that is, the original act of 1893, provides that it shall be unlawful for any common carrier engaged in interstate commerce by railroad "to haul or permit to be hauled or used on its line any car used in interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars;" and by the amendment of 1903 it is provided that this provision and requirement shall apply to *'all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith." Now, it is undisputed in this case that those cars, especially this Erie car, a car on which the plaintiff was hurt, that is, one of them, was a car that had interstate freight in it; it was going from either some point up in Virginia or Tennessee to Georgia. The Southern Railway Company is an interstate carrier, and it v/as hauling interstate traffic in this train, and it was its duty to have the cars in that train, especially this Erie car, equipped with automatic couplers in compliance with the Safety Appliance Act, and it ought to have had couplers on that car such as could be coupled and uncoupled without the necessity of the men going between the ends of the cars to perform the work. Now, the first thing that the plaintiff has to prove by the greater weight of the evidence is that there was a coupler on that car which would not uncouple without the men going between the cars. If the plaintiff fails to prove that by the greater weight of the evidence, he fails in his case. Now, he says that it would not uncouple by working the lever; that he tried it several times and that the lever would not work APPEISTDIX G, 693 and the car would not uncouple. Now, the first thing for your consideration is whether, from the weight of the evi- dence, you believe that statement. The defendant relies on the evidence of the conductor, who, after the accident, tried this lever and it worked all right, as he states, and that he, as a matter of fact, from his testimony uncoupled the car; and of the inspector, who says that a little bit later on he worked the lever and it worked all right, although at the time he worked it the car was not coupled to the other car. Now, the first question you have to determine is whether or not it is a fact that the coupler w^ould not work, and if you find as a matter of fact that it would not work, that the plaintiflP tried to make it w^ork, but that it would not work, of course the next question for you to consider is whether he tried to work it in the proper way. If it would not work because he did not operate it in the proper way, of course there would be no liability on the part of the railway com- pany in that regard. But if he tried to work it in the proper way and it would not work, if you find that to be the case, then I charge you that the burden of proof would shift, and that would raise the presumption that there was something wrong with that coupler, and then the burden of proof would be on the defendant to show why that state of facts existed and to explain it. Now I charge you that if a coupler does not work in every instance, and if the fact that it does not work is due to some temporary condition in which the car is placed with reference to other cars, or the movement of the car or of the train in which it is placed, which is a condition that will happen in any coupler, and which can not be avoided in the highest state of the art, the mere fact that it would not work under those conditions would not rondi^r the company liable. But upon that ground the burden of proof rests on the company, if you think that it would not work when operated in the proper way, to show that the coupler was of the highest state of the art and that the reason that it Avould not work was that it was impossible to have a coupler that would work 694 FEDERAL SAPETY APPLIANCE ACT. in that condition. On that question the burden of proof would be on the railway company, if you believe from the evidence that the coupler would not work when properly operated. If you find in favor of the plaintiff that the coupler would not work, and find that the defendant failed to show that it had a coupler up to the highest standard, and to explain its failure to work in the manner I have indicated, the next duty devohdng upon the plaintiff to entitle him to a recovery is to show that the failure of the coupler to work was the proximate cause of the injury. It is not disputed that he was working in between those two cars, and the failure to have a coupler equipped according to the Safety Appliance Act would be an act of negligence. But an act of negligence does not make the company responsible for an injury which does not result from the act of negligence in such sense that the company's negligence is the proximate cause of the injury. Ordinarily when an injury is the natural and probable con- sequence of negligence, or a wrongful act such as the viola- tion of a statute, and ought to have been foreseen in the liglit of the attending circumstances, and there is no intervening or independent cause, such negligence or wrongful act is said to be the proximate cause of the injury. And where care- lessness or negligence in the bringing about, for example, of a dangerous condition, or unlawful condition, is of a character which, according to the usual experience of mankind, is cal- culated to invite or induce the intervention of some subse- quent cause, such intervention will not excuse the original wrongdoer, and the subsequent mischief will be held to be the result of the original misconduct. In other words, it will be your duty to determine whether it was a natural and probable consequence of having a car in such condition, in violation of the Safety Appliance Act, if you find it was in such condition, that an employee in the discharge of his duty would be injured in going between two cars in making a coupling which he was required to do because of the defective condition of the coupler. APPENDIX G. G95 In such case, if you find it to be the natural and probable consequence of having a coupling apparatus in a condition that it would not work and that an employee in the discharge of his duty on account of the defective coupling would liave to go in between the cars to make the coupling, then you would be justified in regarding the defective condition of the coupling as a proximate cause of the resulting injury to the employee, provided he went between the cars for the purpose of making a coupling or uncoupling. And in that aspect of the case, in determining whether the condition of the coupling was the proximate cause of the injury, you would have to determine, as a material matter, whether he was making the uncoupling or whether he w^ent there between the cars to turn the safety cock. It might well be a consequence to be fore- seen and guarded against of having a coupling in a defective condition that a man would have to go between the cars to make a coupling or uncoupling, but it would not follow at all that from having a coupling in a defective condition a man would go between the cars for the purpose of turning the safety cock if he w^ould have to go in between the cars to turn the safety cock regardless of the question of whether the coupler worked or not. In other words, if he would have to go between the ears to turn the safety cock whether the coupling was working or not, then it is clear that whatever the condition of the coupling was it would not involve lia- bility as a result of going between the cars, not to handle the coupling, but to turn the safety cock. So that you vnW have to find the object for which he went between those cars. Now, if you find that the coupler was defective, that he condition of the coupler was the proximate cause of the acci- dent, the defendant still says that it would not be liable, because the plaintiff was guilty of contributory negligence. Now, while the Safety Appliance Act provides that the employee does assume the risk of using the defective appliance itself, it has been held that it does not take away from the company the defense of contributory negligence. That is, the statute does not excuse the employee from a failure to use 696 FEDERAL SAFETY APPLIANCE ACT. ordinary prudence in his own behalf, where he knows of the absence of the proper appliances, and if the employee, after ha\'ing knowledge that the appliances were not in the con- dition required by the statute, he himself is guilty of contribu- tory negligence, which operates as one of the direct causes of the injury which he receives, then he cannot recover. Now, to take an extreme case, simply to illustrate the dis- tinction: If an employee knows that there are no automatic couplers on the cars, but should attempt, with knowledge of that fact, to go in between two cars on a rapidly moving train to make a coupling, say a train running at the rate of 20 miles an hour, or when the care are moving so fast that an ordinarily pinident man with due regard for his own safety w'ould not go between the cars to make a coupling at that time, he would obviously be guilty of contributory negli- gence, Avhich would bar a recovery, although he did not as- sume the general risk of continuing in the service of the company \nth the knowledge of the fact that there were no automatic couplers on the car. So, then, the question would be, if you find in favor of the plaintiff on the first two propo- sitions, was the plaintiff, wdth the knowledge he had of the conditions, guilty of contributory negligence in going between the cars at that time? Now, contributory negligence is a failure on the part of a man to exercise that amount of care which, under the circum- stances, might be reasonably expected of an ordinarily prudent person, and whenever a plaintiff himself so far contributed to his injury by his owti negligence or want of ordinary care or caution that but for such neglect or want of ordinary care and caution on his part the accident would not have hap- pened, then he is guilty of contributory negligence and cannot recover. The test of his contributory negligence is the care that an ordinarily prudent man, similarly situated, under the same circumstances, with like knowledge of the conditions, would have exercised in his own behalf, and a failure to use such care, operating as a direct cause of the injury, is contribu- APPENDIX G. 697 tory negligence. If, however, gentlemen, the danger, although present or appreciated, is one which many men are in the habit of assuming, and which prudent men who earn a living are willing to assume for extra compensation, and if the person assuming such risk, having in view the risk of the dangers thus assumed, while assuming it, still uses care rea- sonable and commensurate with the risks to avoid injurious consequences, he is not guilty of contributory negligence. But if an employee, who knows the danger while assuming the risk, does not use such care in his own behalf, and by reason of the failure to use such care suffers injury, he is guilty of contributory negligence, and cannot recover, even though the negligence of the employer in violating the statute was also a cause of the injury. So, then, you should determine this question. If there would otherwise be a case against the defendant on account of the violation of the statute, still would an ordinarily pru- dent man situated as this plaintiff was, and with a knowledge of those conditions of the liability of the car to come back after the ears had been backed up a slight grade — would an ordinarily prudent man have gone in between those care to make that coupling? Or, if an ordinarily prudent man, earn- ing his living as this plaintiff was, and in view of the risks which were assumed by him, if an ordinarily prudent man would have gone in between the cars at all, would he have gone in in the way that this plaintiff did, and would he have placed himself in the position with reference to the bumpers and the cars that this plaintiff did? That is, did the plaintiff take care of himself under these circumstances, in going be- tween these cars, first, with reference to going in at all, and second, with reference to the position of his body and arms after he went in there that an ordinarily prudent man would have done, with due regard to his own safety? A man must exercise ordinary care for himself and for the preservation of his own life, and if he fails to exercise that ordinary care that a reasonably prudent man would, and that is one of the causes of the injury received, he cannot 698 FEDERAL SAFETY APPLIANCE ACT. recover, no matter what the negligence of the defendant may have been. Or, that question the burden of proof is on the defendant, and it must establish the want of care either in going in at all, or in the way he conducted himself after going in ; it must establish that want of care by a preponderance, or a greater weight of the evidence. On the first two propositions, that the company was not operating in compliance with the Safety Appliance Act, if that be the case, and if that be, that this was a proximate cause of plaintiff's injury, the burden of proof is on the plaintiff. His proof on that subject must overweigh the defendant's proof. But if you get to the other proposition then the burden of proof shifts, and the defendant is required to establish by the greater weight of the evidence the fact of plaintiff's contributory negligence. But if it does establish it, there can be no recovery. It would not be a question of cutting doAvn the amount of damages. Contributory negligence defeats any recovery at all ; it does not cut down or decrease the amount of the verdict, except in certain cases not involved here. If you find in favor of the plaintiff, it would be your duty to assess his damages. The damages which you would assess should be compensatory. In doing this, you should consider all the circumstances connected with the plaintiff, his age, his earning capacity, his habits, his prospects of life, and of earning wages in life, the extent to which he has been de- prived of earning a livelihood as a result of this injury, and of the means of earning a livelihood; if you find that he is entitled to a recovery at all, you should fix such sum as in your judgment would be a fair and just compensation for the injury received, as well as would be a fair and just com- pensation for the suffering, and the expenses to which he was put — the medical expenses — although I believe none were proven in this case. But if you find he is entitled to a re- covery, you give such sum as will compensate for the suffer- ing, the loss of time, and the decrease of his earning capacity. APPENDIX G. 699 You are the judges of the weiglit to be given to the testi- mony of the witnesses. You should consider their demeanor on the witness stand, their intelligence, their manner of tes- tifying, the extent to which they are contradicted or cor- roborated by other witnesses, their candor, or lack of candor, interest, or lack of interest, in the result of this lawsuit, and the reasonableness of the story they tell, and then determine where, in your opinion, under the law, as given you, the truth of this case is to be found. Verdict for plaintiff, $5,000. No. 1007. THE NORFOLK & WESTERN RAILWAY CO., PLAIN- TIFF IN ERROR, V. THE UNITED STATES OF AMERICA, DEFENDANT IN ERROR. United States Circuit Court of Appeals, Fourth Circuit.) In error to the District Court of the United States for the Eastern District of North Carolina, at Raleigh. Argued February 15, 1911. Decided October 14, 1911. 1. Admissibility in Evidence of Model Coxjpler3. Where there is a question as to complicated machinery it is com- petent to use any model or drawing that may illustrate the condition of such miachinery, so as to give the jury a clear and distinct idea as to the nature and character of the defect, in order tliat they may intelligently deal with the question submitted for their considera- tion. Citing cases. 2. Admissibility of Irrelevant Question. Question of defendant's counsel relative to an inspection other than that on which complaint v/as based: Held, Properly excluded. 3. Admissibility of Rules Governing Inspections. Where the purpose of the inspection was to secure evidence for prosecution: Held, That the rule of the Comnu'^sion requiring inspectors in all other cases to make themselves kno^\^^ to com- pany's employees was properly excluded. 700 FEDERAL SAFETY APPLIANCE ACT. 4. Notification of Railkoad at Time of Discovering Defect. The court below properly held that inspectors need not notify defendants of the existence of defects at the time of their discovery. Citing cases. 5. Refusal of Court to Grant Prayer Covered by Otiiek Insteuc- TIONS. \Miere the court refuses a prayer and then in its general charge or in another prayer covers the point in question, even though it erred in refusing the prayer, such error is not prejudicial, and is therefore harmless. 6. Degree of Dlligence Required by the Act. llie trial court properly refused to instruct the jury that "the law does not impose upon a railroad company the duty of an absolute insurer as to the perfect condition of such safety appliances at all times and under all conditions and circumstances." Citing oases. William A. Guthrie (Theodore W. Reach on the brief), for the plaintiff in error. H. F. Sea WELL, United States attorney, and Philip J. Do- herty, special assistant United States attorney (Roscoe F. Walter, special assistant United States attorney, on the brief), for the defendant in error. Before Goff and Pritciiaed, Circuit Judges, and Rose, Dis- trict Judge. statement of facts. This is an action in debt begun by the United States to recover a penalty of $100 incurred by the defendant in hauling a car not equipped as provided in the Safety Appli- ance Act of March 2, 1893, as amended by an act approved March 2, 1903. The petition charged in substance that the defendant was a common carrier engaged in interstate commerce by rail- road, and as such, on August 28, 1908, hauled on its line of railroad one car, to-wit, its OM'n No. 20370, containing inter- state traffic, to-wit, tobacco consigned to a point without the State of North Carolina. It further alleged that on said date the defendant hauled said traffic in said car from Durham, in the State of North Carolina, in a northerly direction, when APPENDIX G. 701 the coupling and uncoupling apparatus on the "B" end of the car was out of repair and inoperative, the uncoupling chain being kinked inside the coupler liead on said end of said car, thus necessitating a man or men going between the ends of the cars. The defendant answered and admitted that it was a com- mon carrier engaged in interstate commerce, and that it hauled car N. & "W. 20370 on the date alleged from Durham, in the State of North Carolina, and that this car was used in the movement of interstate traffic, l)ut denied that the coupling and uncoupling apparatus on the ''B" end of the said car was out of repair and inoperative as alleged in the petition. On May 31, 1910, there was a trial of this case before a jury on the following issue: Was the coupling chain on the "B" end of N. &. W. car No. 20370 kinked in tlie head of the coupler wlien said car left Durham, N. C. on August 28, 1908, and inoperative so that it required a man or men to go between the cars to couple and uncouple it, as is alleged in the petition ? The finding of the jury was in the affirmative, upon Avhich finding judgment was entered against the defendant in the sum of $100. OPINION OP THE COURT, Pritchard, Circuit Judge: The first assignment of error is to the effect that the court below erred in allowing the plaintiff the use of models of the Climax and Tower couplers as a means of demonstrating his evidence while the Government witness, Cash, was being exam- concerning the condition of the Major coupling, the kind with which the car in question was equipped. The model in ques- tion was used merely for the purpose of aiding the court and the jury in ascertaining as to v/hether there was any defect in the coupler, and it was admitted by the Government that this model was not exactly like the coupler attached to the car in question. It was not introduced in evidence, but the 702 FEDERAL SAPETY APPLIA.NCE ACT. court permitted the use of the same to illustrate the condition of the coupler just as maps and drawings are used in the trial of ejectment suits. It was contended by the Govern- ment that the chain w^as kinked in the coupler head, but there was no complaint as to the lock block. ]\Ir. Cash, while on the witness stand, among other things, testified as follows: Q. By means of this model you may explain to the court and the jury just what condition you found the coupling apparatus on the "B" end of this car? — A. We haven't here a Major coupler, but one of these is known as the Climax and the other the Tower. The Major coupler is made more on this order, on the order of the coupler [indicatingl and the chain had gotten kinked in this position [indicating] in sucn a way that you couldn't get it far enough either way to get it out, and it was perfectly rigid. Thus it will be seen that this model was used solely for the purpose of illustrating the exact condition of the chain at the time the inspection was made. "Where, in a trial like the one at bar, there is a question as to complicated machinery, it is competent to use any model or drawing that may illustrate the condition of such machinery so as to give the jury a clear and distinct idea as to the nature and character of the defect in order that they may intelligently deal with the question that is submitted for their consideration. Wigmore on E\ddence, volume 1, section 791, contains the following statement as to the rule : The use of models, maps, and diagrams as modes of conveying a wit- ness's knowledge is illustrated in manifold rulings, as well as in the ■daily practice of trials. Citing an instance in a trial in an English court. {Watson's trial, 32 How. St. Tr., 125.) Also in the f ollo^^dng cases this rule is announced : Western Gas Company v. Danner (97 Fed. Rep., 892) ; Soutliern Pa- cific Co. V. Hall (100 Fed. Rep., 760) ; Dobson v. Wliisenhant, (101 N. C, 645). "We think the action of the court below in permitting the use of models merely for the purpose of illustration was not prejudicial to the rights of the defendants. APPENDIX G. 703 The second objection is to the effect that the court below erred in sustaining the objection of counsel for the Govern- ment to the following question put to the Government inspec- tor, Cash, on cross-examination. I ask you if in one of your visits (to Lynchburg yards) on an inspec- tion tour you did not find a car where the chain appeared to be kinked in the coupler head, and if you were not about to take a note of it when Mr. Clark and his assistant, Mr. Wingfield (the company's inspector), who were present in the yard, and if IMr. Clark did not take hold of the lever and by the lever alone shake the pin or chain that held the pin in proper position and you did not thereupon say, "This seems to be all right" — not this particular car in question but on another car? This evidence, it appears, relates to a time and place differ- ent from that alleged in the declaration, and we cannot understand upon what theory it could have been offered as having any bearing whatever upon the issues involved in this controversy. In the first place, there is nothing to indicate what would have been the witness's answer, but in any event this testimony would not be competent. The mtness was being cross-examined and it was purely ^\dthin the discretion of the court as to whether he should be required to answer the question, inasmuch as it did not tend to throw light upon the issues raised by the pleadings, and we think the court very properly excluded the same. The next point relates to the refusal of the court to permit the defendant to introduce a pamphlet marked "A. H. G. C." containing the rules of the department, upon the examination of witness Cash. That portion of the rules offered as evidence is in the following language : I. Tn all inspections except in those intended to secure evidence of violation of the law, the inspector should make himself kno^vn to the foreman or other official of the mechanical department or in the absence of that officer, to the agent or other employee next in authority. In all cases have name and title of such officer or employee included in report of inspection. Whenever practicable the official found in charge should be invited to accompany or send a representative with the inspector, and the person so accompanying the inspector sliould have his attention dra^\^^ to all defects noted. The time of making inspections is to be sho^vn on each report. * • * The object of these instructions is to call the attention of inepectora to certain rules to be observed in obtaining evidence upon which the 704 FEDERAL SAFETY APPLIANCE ACT. Government can successfully prosecute. Ingpectors should enter upon the investigation of eA-ery case in a spirit of fairness and with a desira to perform their whole duty as officials of the Grovernment, directed to aid in the execution and enforcement of the law. It is provided by the foregoing that in any inspection, except those intended to secure evidence of violation of the law, that the inspector should make himself known to the officer in charge, or, in the absence of the agent, the next official in authority, and whenever practicable the official found in charge should be invited to accompany or send a representative wdth the inspector so as to have his attention called to any defects and the same noted. The next paragraph is explanatory of this rule, and, among other things, it is stated therein that the inspectors must observe the rules under which they operate and enter upon every investigation with a spirit of fairness and a desire to perform their whole duty as official directed to aid in the execution and enforcement of the law. The real issue, as we have stated, in this case is as to whether the defendant violated the law by hauling over its road one of its cars the coupler of which was in a defective condition. It should be borne in mind that at this time the witness was engaged in the performance of his duties at Durham and was endeavoring to secure evidence of violation of the law and the exception to the rule is to the effect that in such cases he is not required to make himself known. The witness testified that on that occasion he was seeking evidence of violation of the law, and inasmuch as the evidence shows that the work in which he was engaged at that time brought him clearly within the exception of this rule, we fail to see how the rule and the instructions proposed to be introduced could have had any bearing upon the issue raised by the pleadings. Witness Cash, among other things, testified as follows : Q. What was the purpose of your goinff to the yard of the Norfolk & Western that morning? — A. To see whether or not the Norfolk & West- em was complying with the safety appliance law with reference to their equipment. APPENDIX G. 703 Inspector Cullinane also testified as follows: Q. When you and Mr. Cash went there (to Durham, X. C, on August 28, 190S), you were making a general, visitation to see whether or not you could find any violation of the safety appliance law? — A. Yes, sir. Thus it clearly appears that the inspectors Avore acting strictly within the scope of their authority. Therefore the admission of this evidence would not have been competent in any view of the case — not even for the purpose of impeach- ing the witness. He testified that they were looking for vio- lations of the law, and, as we have stated, the rule clearly provides that in such cases the inspector is not required to disclose his identity. Therefore we think the ruling of the court below as to this point was eminently proper. It is also insisted that the court below erred in granting an instruction, at the request of counsel for the Government, to the effect that the Government inspector was under no legal obligation to inform the railroad company of defective cars. Congress by the enactment of the statute by virtue of which this suit was instituted evidently intended to hold the railroad companies to a high degree of diligence in equipping and maintaining their cars with the proDcr safety appliances. If it is the intention of the law that when an inspector goes from place to place and when he finds a car in a defective condition that it is his duty to notify the company of the same before the car is transported, then it would be impossible to secure anything like a fair enforcement of the law which penalizes the railroads for not properly equipping and maintaining their cars with safety appliances. In the ease of United States v. So. Ry. Co., Kent's Index- Digest, 125, the court said : Inspectors in the employ of the Interstate Commerce Commission are not required to inform the employees of the defendant, when they make tJie inspection of the cars sued upon, of the defects found in the appliances. Also in the case of the United States v. A., T. & S. F. Ry. Co., Kent's Index-Digest, 125, the court said: 706 FEDERAL SAFETY ArPLIANCE ACT. Tlie inspectors for the Government are not required to notify the employees of the railroad company of existing defects previous to or at the time of movement of defective oars. Under the circumstances of this case, and in view of the requirements of the statute, we think the court did not err in granting this instruction. It is also urged that the court erred in refusing to grant instruction No. 2, requested by the defendant. The instruc- tion in question is in the folloM-ing language : If there is a mistake of fact as to the basis of the charge, the defend- ant is entitled to recover. In this instruction no particular fact is referred to as having any bearing upon the controversy that was then being con- sidered by the jury. It is simply an abstract proposition of law unaccompanied by any explanation as to its relevancy to the facts then being considered by the jury. However, the court submitted to the jury an instruction, which, though not in the same words, substantially covered the point sought to be raised by the instruction offered by the defendant. This instruction reads as follows : You are instructed that if the uncoupling chain on the "B" end of the car N. & W. 20370 was so kinked in the coupler head that with rea- sonable effort a man could not operate the uncoupling apparatus on said end of said car witliout going between the ends of the cars, then sucii car was not in the condition required by law. If you believe from a preponderance of the etvidence that said car was hauled out of Durham, in the State of Xorth Carolina, on August 28, I!)08, in such above- described condition, then it is your duty to answer the issue "Yes." Here the court instructed the jury as to what constituted a violation of the law and further informed them that if they failed to find as a fact, by a preponderance of the evidence, that the car in question was hauled out of Durham, at the time mentioned in the petition, in a defective condition, that it Avas their duty to answer the issue in favor of the defendant. The point sought to be presented in the prayer as requested by the defendant was substantially covered in the general charge of the court to the jury. It has been repeatedly held that where the court refuses a prayer and then in its general APPENDIX G. 707 charge or in another prayer covers the point in question, that even though the court erred in refusing the prayer that such error was not prejudicial and tlierefore harmless. It is contended by the defendant that the court erred in refusing to give instruction No, 8, which is in the following language : Th«i court further charges the jury that even though you find from the evidence that the chain was kinked in tlie coupler at the '•]?'' enf the liighest order, and the duty thus imposed is absolute and unconditional. Therefore any failure on the part of a railroad company to comply with its requirements must necessarily subject the railroad company to the penalty imposed. The foregoing is in harmony with the recent decision of the Supreme Court in the cases of E. M. Delk v. St. Louis & S. F. APPENDIX G. 70!) R. Co. (220 U. S., 580) and the Chicago, Burlington & Quincy R. Co. v. United States (220 U. S., 5.39), dceidcd May 15, 1911, expressly affirming the rule announced in tlie case of St. Louis, I. M. & S. Ry. Co. v. Taylor, snpni. For the reasons stated the judgment of the lower court is affirmed. UNITED STATES v. CHICAGO, MILWAUKEE & PUGET SOUND RAILWAY CO. (In the United States District Court for the District of Montana.) Decided May 2, 1911. Where the coupler on the front end of a locomotive oncine is rlofoptivp in that the height of the dra"\vbar is below the minimum provided for in the Safety Appliance Act, it is a violation of the statute to use such engine in interstate commerce even though the coupler is so defective that a reasonably prudent man would not undertake to make a coupling, and even though no u'^e is shown of the defective coupler, but the end of the locomotiv,-^- engine which is not defeetive is employed in making the movement. The purjx>se of the statut" is to protect the lives and safety of all employees, whether they are reasonably prudent or not. STATEMENT OF FACTS. The petition filed by the Government in this case charged that on January 10, 1910, the defendant used its locomotive engine No. 1163 in interstate traffic when the height of the drawbar on the front end was only 80 inches, being below the minimum provided for by the Safety Appliance Act. The evidence showed that when first seen by the Govern- ment inspectors the front end of the locomotive engine was coupled to a string of cars and that, owing to the low drawbar, the engine broke aM^ay from the cars when an attempt was made to haul them. The engine w^as taken to the roundhouse, put on the turntable, and brought out in the yards and put in sei-vice again, but there was no evidence of any actual u?e of the defective coupler after that time. 710 FEDERAL SAFETY APPLIANCE ACT. It was contended by the defendant that the coupler was in such a condition that no reasonably prudent man would attempt to use it. On the other hand, it was contended by the Government that the purpose of the Act was to protect the less prudent man who might, in case of emergency, be tempted to take chances. INSTRUCTIONS TO JURY. Dietrich, District Judge (charging jury) : Gentlemen of the jury, by the undisputed evidence in tliis case, no issue of fact is left for your consideration. As I view the law, it is illegal for a railroad company to use an engine in the condition in which this engine undoubtedly was, even though the defective end was not actually employed. By the law it was intended to prohibit a railroad company from using a car or engine having a defective coupler only upon one end, even though that coupler was so defective that a reasonably prudent man would not undertake to make a coupling therewith. The law was intended to protect the lives and safety of all employees, whether they are reasonably prudent or not. As I view it, an engine in the condition in which this was was a possible source of great danger, in that if an employee were standing upon the footboard and the head of the defective coupler was so low as not to engage with the coupler upon a car in proper condition, thus permitting the two cars to come close together, the employee might be crushed. Or, upon the other hand, an employee of little ex- perience or caution might undertake, in case of emergency, to couple the defective coupling with that of another car, and thus imperil his safety or his life. In that view I have ex- cluded the testimony offered on behalf of the defendant and declined to give certain requested instructions, and it becomes your duty to find a verdict in favor of the plaintiff in ac- cordance with the prayer of the complaint. APPENDIX H. STATE STATUTES. CxiLIFORNIA. [Statute 1911, p. 796.] Section 1. ''In any action to recover damages for a per- sonal injury sustained by an employee while engaged in the line of his duty or the course of his employment as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, or of any officer, agent or servant of the employer, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer w^as gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee, and it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee's injury; and it shall not be a defense : (1) "That the employee either expressly or impliedly as- sumed the risk of the hazard complained of. (2) "That the injury or death was caused in whole or in part by the want of ordinary or reasonable care of a fellow servant. Section 2. "No contract, rule or regulation, shall exempt the employer from any of the provisions of the preceding section of this Act. ' ' 711 712 STATE STATUTES. FLORIDA. From General Statute 1906. Section 3148. Liability of railroad company. "A railroad company shall be liable for any damages done to persons, stock or other property, by the running of the locomotive, or ears, or other machinery of such company, or for damage done by any person in the employ and service of such com- pany, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. ' ' Section 3149. When recovery of damages jorhidden. "No person shall recover damages from a railroad company for injury to himself or his property, where tlie same is done by his consent, or is caused by his own negligence. If the com- pany and the agents of the company arc both at faidt, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him." Section 3150. Liability for injury to employee. "If any person be injured by a railroad company by the running of the locomotives or cars, or other machinery of such company, he being at the time of such injury an employee of the com- pany, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his emplojnnent by the company shall be no l)ar to a recovery. No contract which restricts such liability shaU be legal or binding." [Acts 1891, Ch. 4071, § 1.] IOWA. [Code 1907, § 2071, as amended by Acts 1911, p. 117.] Section 2071. "Every corporation operating a railway shall be liable for all damages sustained by any person, in- cluding employees of such corporation, in consequence of the APPENDIX H. 713 neglect of the agents, or by any mismanagement of the engi- neers, or other employees thereof, and in conse(iiience of the; wilful wrongs, whether of commission or omission, of such agents, engineers or other employees, when such wrongs are in any manner connected Avith the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or ])inding. Nor shall any contract of insurance, relief, benefit, or in- demnity in case of injury or death, entered into prior to th(! injury, between the person so injured and such corporation, or any other person or association acting for such corporation, nor shall the acceptance of any such insurance, relief, benefit, or indemnity by the person injured, his widow, heirs, or legal representatives after the injury, from such corporation, person or association, constitute any bar or defense to any cause of action brought under the provisions of this section ; but nothing contained herein shall be construed to prevent or in- validate any settlement for damages between the parties sub- sequent to injuries received." [The following was added in 1911.] "That in all actions hereafter brought against any such corporation to recover damages for the personal injury or death of any employee under or by virtue of the provisions of this section, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negli- gence in any case where the violation by such common carrier or corporation of any statute enacted for the safety of em- ployees contributed to the injury or death of such employee ; nor shall it be any defense to such action that the employee who was injured or killed assumed the risks of his employment. ' ' 714 STATE STATUTES. MICHIGAN. [Public Acts 1909, p. 210.] Section 1. "Every common carrier railroad company in this state shall be liable to any of its employees, or, in case of his death, to his personal representative for the benefit of his widow and children, if any ; if none, then for his parents ; if none, then for his next of kin, for all damages which may result from the negligence of any such railroad company or from the negligence of any of its officers, agents or employees, or by reason of any defect or insufficiency due to the negli- gence of any such common carrier railroad company in its cars, engines, appliances, machinery, track, roadbeds, works, boats, wharves, coal docks or other equipment." Section 2. "In all actions hereinafter brought against any such common carrier railroad company under or by virtue of any of the provisions of this Act to recover damages for personal injury to any employee, or where such injuries have resulted in Lis death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery : Provided, That the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees: Provided further, That no employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier railroad company of any statute enacted for the safety of employees contributed to the injury of such employee, and such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of emj^loyees contributed to the injury or death of such employee." Section 3. "The words 'railroad company,' as used in this Act, shall be taken to embrace any company, association, corporation, or person managing, maintaining, operating, or in possession of a common carrier railroad in whole or in part APPENDIX n. 71, J within this state, wliethcr as owner, contractor, lessee, mortgagee, trustee, assignee or receiver.'' Section 4. "No contract of employment, insurance, relief, benefit, or indemnity for injury or death entered into by or ou behalf of any employee, nor the acceptance of any such in- surance, relief, benefit or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to, or death of such employee : Provided, hoivever, That upon the trial of such action, the defendant may set off therein any sum it has contributed toward any such insurance, relief, benefit or in- demnity that may have been paid to the injured employee, or, in case of his death, to his personal representative." Section 5. "No action shall be maintained under this Act unless commenced within two years from the time the cause of action occurred." Section G. "Nothing in this Act shall be held to limit the duty of common carrier railroad companies, or impair the rights of their employees under existing laws of the state." Section 7. "The provisions of this Act shall not apply to employees working in shops or offices." MONTANA. [Laws 1911, p. 47.] Section 1. "Every person or corporation operating a railroad in this state shall be liable in damages to any person suffering injury while he is employed by such person or corporation so operating any such railroad, or, in case of the death of such employee, instantaneously or otheruase, to his or her personal representatives, for the benefit of the surviv- ing widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employees, for such injury or death resulting in whole or in part from the negli- 716 STATE STATUTES. gence of any of the officers, agents, or employees of such person or corporation so operating such railroad in or about the handling, movement or operation of any train, engine or cars, on or over such railroad, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, ap- pliances, machinery, track, roadbed, works, boats, wharves or other equipment," Section 2. "In all actions hereafter brought against any such person or corporation so operating such railroad, under or by virtue of any of the provisions of this Act, the fact that the employee may have been guilty of contributory negli- gence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negli- gence attributable to such employee : Provided, That no such employee who may be injured or killed shall be held to have been giiilty of contributory negligence in any case where the violation of such person or corporation so operating such rail- road of any statute for the safety of employees contributed to the injury or death of such employee." Section 3. ' ' Any employee of any such person or corpora- tion so operating such railroad shall not be deemed to have assumed any risk incident to his employment when such risk arises by reason of the negligence of the employer or of any person in the service of such employer." Section 4. ' ' Any contract, rule, regulation or device what- soever, the purpose or intent of which shall be to enable any such person or corporation so operating such railroad to ex- empt itself from any liability created by this Act shall, to that extent, be void : Provided, That in any action brought against any such person or corporation so operating such railroad, under or by virtue of any of the provisions of this Act, sucb. person or corporation may set off therein any sum it has con- tributed or ])aid to any insurance, relief, benefit, or indemnity that may have been paid to the injured employee, or to the persons entitled thereto, on account of the injury or death for which said action is brought." APPENDIX H. 717 NEBRASKA. [From Cobbey's Ann. Stat. 1911.] Section 10591. Liahiliiy of company for injury or death. "That every railway company operating a railway engine, or a train in the state of Nebraska, shall be liable to any of its employees, who at the time of injury are engaged in construc- tion or repair work or in the use and operation of any engine, car or train for said company, or, in the case of his death, to his personal representatives for the benefit of his widow and children ; if any, if none, then to his parents ; if none, then to his next of kin dependent upon him, for all damages which may result from negligence of any of its officers, agents or employees, or by reason of any defects or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways or works." [Laws 1907, Ch. 48, p. 191, § 1.] Section 10592. Contributory negligence, not a bar. "That in all actions hereafter brought against any railway company to recover damages for personal injuries to an employee, or when such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, when his contributory negligence was slight and that of the employer was gross in comparison, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, all questions of negligence and contributory negligence shall be for the jury." [Laws 1907, Ch. 48, p. 192, § 2.] Section 10593. Insurance or relief contract not bar to re- covery. "That no contract of employment, insurance, relief, benefit, or indemnity for injury or death hereafter entered into by or on behalf of any employee, nor the acceptance of any such insurance, relief, benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employee: Provided, hoivever, That upon 718 STATE STATUTES. the trial of such action against any common carrier the defendant may set off any sum it has contributed toward an}' such insurance, relief, benefit, or indemnity that may have been paid to the injured employee, or, in case of his death, to his personal representative." [Laws 1907, Ch. 48, p, 192, § 3.] NEVADA. [Statutes 1911, p. 362.] Section 1. *'If in any employment to which this Act applies personal injury disabling a workman from his regular service for more than ten days, or death by accident, arising out of and in course of employment is caused to a workman, the workman so injured, or in case of death, the members of his family, as hereinafter defined, shall be entitled to receive from his employer, and the said employer shall be liable to pay, the compensation provided for in this Act : Provided, That recovery hereunder shall not be barred where such em- ployee may have been guilty of contributory negligence where such contributory negligence is slight and that of the employer is gross in comparison, but in which event the compensation may be diminished in proportion to the amount of negligence attributed to such employee, and it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee's injury; and it shall not be a defense: (1) That the employee either expressly or impliedly assumed the risk of the hazard complained of; (2) that the injury or death was caused in whole or in part by the want of ordinary or reasonable care of a fellow-servant. No contract, rule, or regulation shall exempt the employer from any of the pro- visions of the preceding section of this Act." XoTK. — The remainder of this statute defines "employer" and "em- ployee" as used in the statute and j)rovides for the compensation of such employees when injured, tl is based on the English Compensation Act. APPENDIX IJ. 719 NEW JERSEY. [Laws 1911, p. 134.] Section 1. "Wlien personal injin-y is caused to an employee by accident arising out of and in the course of his employment, of which the actual or lawfully imputed negli- gence of the employer is the natural and proximate cause, he shall receive compensation therefor from his employer, pro- vided the employee was himself not wilfully negligent at the time of receiving such injury, and the question of whether the employee was wilfully negligent shall be one of fact to be sub- mitted to the jury, subject to the usual superintending powers of a court to set aside a verdict rendered contrary to the evidence." XoTE. — The remainder of the statute forbids contracts waiving a right to damages in case of injuries, easting the burden on defendant to show "wilful negligence" in the employee; and provides provisions for compensation, similar to the English Compensation Act. Naturally the question arises, what is "wilful" negligence? Louisville, N. A. & C. Ry. Oo. v. Bryor, 107 Ohio 51; — N. E. — . OHIO. [Acts of Ohio, 1910, p. 195.] In 1910 the Ohio Legislature adopted a statute which applies to any employer, fixing a liability for negligence, abolisliing the rule of fellow-servant in many instances, and abolishing assumption of risk in many instances. It then provides as follows : Section 6245-1. ' ' In all such actions hereafter brought, the the fact that the employee may have been guilty of contri1)u- tory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison. But the damages shall be diminished in pro- portion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed vshall be held in any degree to have been guilty of contributory negligence in any case where the viola- 720 STATE STATUTES. tion of such employer of any statute or law of the state, or of the United States, enacted for the safety of employees, in any way contributed to the injuiy or death of such employee unless by the terms of his employment it was expressly made the duty of such employee to report such violation to the employer and the e\adence shows that such employee failed so to report and that the employer was not possessed of knowl- edg-e of such violation. All questions of negligence, con- tributory negligence, and assumption of risk, shall be for the jur^^, under the instruction of the court." OREGON. [Acts 1911, p. 16.] A statute of Oregon defines what corporations shall be liable to their, employees, and for what they shall be liable, and concludes wiih the following section : Section 7. "The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage," TEXAS. [General Laws, 1909, p. 279.] Section 1. "That every corporation, receiver, or other per- son operating any railroad, shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad; or in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow and children, or husband and children, and motlier and father of the deceased, and if none, then of the next of kin dependent upon such employee, for such injury or death, in whole or in part, from the negligence of any of the officers, agents or employees of such carrier; or by reason of any defect or insufficiency due to its negligence, in its APPENDIX H. 721 cars, engines, appliances, maeliinery, track, roadbed, works, wharves, or other equipment : Provided, The amount recover- able shall not be liable for the debts of tlie deceased and shall be divided among the persons entitled to the benefit of the action, or such of them as shall be alive, in such shares as the jury, or the court trying the case without a jury, shall deem proper ; and provided, in case of the death of such employe" the action may be brought without administration by all the parties entitled thereto, or by any one or more of them for the benefit of all, and if all parties be not before the court the action may proceed for the benefit of such of said parties as are before the court." Section 2. "That in all actions hereafter brought against any such common carrier by [or] railroad under or In' virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the emploj'^ee may have been guilty of contributory negligence sliall not bar a re- covery, but the damages shall be diminished by the juiy in proportion to the amount of negligence attributable to such employee : Provided, That no such employee who may be injured or killed shall be held to have been guilty of con- tributory negligence in any case where the violations by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. ' ' Section 3. ' ' That in any action brought against any common carrier under or by virtue of the provisions of this Act to recover damages for injuries to, or the death of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation of such com- mon carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." Section 4. "That any contract, i-ule, regulation or devise whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liablity created by this Act, shall to that extent be void: Provided, That in 722 STATE STATUTES. any action brought against any such common carrier under or by virtue of any of the provisions of tiiis Act, such common carrier may set off therein any sum it lias contributed or paid to any insurance, relief, benefit, or indemnity that may have been paid to the injured employee, or the person entitled thereto on account of the injury or death for which said action "was brought." Section 5. ''That nothing in this Act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under 'The Assumed Risk Law,' enacted by the Twenty-ninth Legislature, and known as Chapter 163, page 386, of the General Laws of the Twenty- ninth Legislature, any other Act or Acts of the Legislature of this state, though in case of conflict this law shall prevail, or to effect the prosecution of any pending proceeding or right of action under the laws of this state." Section 6. "The fact that a conflict may arise between the Federal courts and the courts of this state in construing the Federal [statutes] and state statutes of this state in suits against common carriers by employees for damages on account of personal injuries, creates an emergency, and on inspection public necessity exists that the constitutional rule requiring bills to be read on three several days be suspended and that this Act take effect and be in force from and after its passage, and it is so enacted." WASHINGTON. [Acts 1911, p. 345.] The state of Washington has a Workman's Compensation Act which gives a workman injured in extra-hazardous work, their families and dependents, compensation "regardless of questions of fault and to the exclusion of every other remedy, proceedings or compensation, except as otherwise provided in the Act. APPENDIX 11. 72:} WISCONSIN. [Laws 1907, pp. 495, 496.] Section 1816. Crippling or death damages. "Every rail- road company * * * shall be liable for * * * dam- ages * * * for all injuries, whether resulting in death or not, sustained by any of its employees, subject to the provi- sions hereinafter contained regarding contributory negligence on the part of the injured employee." 1. Roadbed and machinery defects. "When * * » such injury is caused by a defect * * * in any locomo- tive, engine, car, rail, track, roadbed or appliance * * * used by its employees in and about the business of their employment. ' ' 2. Fellow employees* negligence. "When such injury * * * shall have been sustained by any officer, agent, servant or employee of such company, while engaged in the line of his duty and which injury shall have been caused in whole or in greater part by the * * * negligence of any other officer, agent, servant or employee of such company * * * in the discharge of, or * * * by reason of failure to discharge his duties as such * * *." 3. Court's qiiestions to jury. "In every action to recover for injury the court shall submit to the jury the following questions : First, whether the company, or any officer, agent, servant or employee otlier than the person injured was guilty of negligence directly contributing to the injury; second, if that question is answered in the affirmative, whether the person injured was guilty of any negligence which directly contributed to the injury; third, if that question is answered in the affiniiative, whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury tlian that of the company, or any officer, agent, sen'ant or employee other than the person so injured; and such other questions as may be necessary." 4. Comparative negligence. "In all cases where the jun' shall find that the negligence of the company, or any officer, 724 STATE STATUTES. agent or employee of such company, was greater than the negligence of the employee so injured, and contributing in a greater degree to such injury, then the plaintiff shall be entitled to recover, and the negligence, if any, of the employee so injured shall be no bar to such recovery." 5. Question for jury. "In all cases under this Act the question of negligence and contributory negligence shall be for the jury. ' ' 6. Contracts and rules subordinate. "No contract or re- ceipt between any employee and railroad company, no rule or regulation promulgated or adopted by such company, and no contract, rule or regulation in regard to any notice to be given hy such employee shall exempt such corporation from the full liability imposed by this Act. ' ' 7. "Eailroad company" defined. "The phrase 'railroad company,' as used in this Act, shall be taken to embrace any company, association, corporation or person managing, main- taining, operating, or in possession of a railroad, in whole or in part, within this state, whether as o-wTier, contractor, lessee, mortgagee, tiTistee, assignee or receiver." 8. ConfJict of laxvs. "In any action brought in the courts of this state by a resident thereof, or the representatives of a deceased resident, to recover damages in accordance with this Act, Avliere the employee of any railroad company, owning or operating a railroad extending into or through this state and into or through any other state or states, shall have re- ceived his injuries in any other state where such railroad is owned or operated, and the contract of employment shall have been made in this state, it shall not be competent for such railroad company to plead or prove the decisions or statutes of the state where such person shall have been injured as a defense to the action brought in this state." 9. fihop or office employees. "The provisions of this Act shall not apply to employees working in slioi)s or offices." INDEX TO FEDERAL EJVIPLOYERS' ACT. [References are to pages.] A Act of 1906 — Statute, 397. Act of 1908 — iStatvite, 3'J7. Action — Abatement by deatb of employee, 175. by death of beneficiary, 187. Administrator's action a new action, 175. brings* for beneticiaries, 170. Alien may bring, 177. Courts in wliich may l;e brought, 210, 211. Pleading must show action is brought under statute, 223. Removal to federal court, 222. Substituting administrator, cannot be done, 175. Survival of employees, 1U7, 443. When accrues, 224. Where brought, 210, 211, 222, 426, 430. Administrator — Action brought, IIG. Substituting in action brought by employee, 1G7, 175. Admiralty — Ivuie as to apportionment of damages, 133. commendation of, 137. origin of, 135. Alaska — Statute applies to accidents in, 39. Aliens - — Right to sue on statute, 177. 725 726 INDEX TO employers' liability act. [References are to pages.] Annuity Table — ^Liy be put in evidence, when, 1S6. Appeal — When may be taken, 224. Assumption of Risk — Preventing recovery, when, 139. rule, see. Safety Appliance Act violated, 146. Austria — Rule concerning fellow servant, 5, 410. Bastard — Xot a dependent on his father, 171. Belgium — Rule as to fellow servant, 5, 410. Beneficiaries — Adopted child, 172. Bastard, 171. Competent, obligation must show who are, 172. Death, see. Death abates action, 187. Dependents, who are, 170. Emancipated child, 172. Kext of kin, 169. Posthumous child, 172. Surviving deceased, must, 172. Who are under statute, 168, 169, Widow not surviving, who are, 169. Burden — Contributory negligence, to show, 146. Freedom from fault, 127. Servant, to show^ service in interstate commerce, 127. c Cab — Operated by railroad company, 46, note. INDEX TO employers' LIABIUTY ACT. 727 [References arc to pages.] California — Statute on comparative negligence, 711. Car Repairer — Statute applies to, Gl, 75. Canal Zone — Power of Congress in, 39. Carrier — Definition of common carrier, 224. Interstate commerce, engaging in, 39, 64. Interurban railroads, 43. Receiver, 224. Street railway companies between states, 43. To whom liable, 40, 50. While "engaging in" interstate commerce, 39, 64. Children — Beneficiaries, see. Code Napoleon — Rule as to fellow servants under, 5, 410. Common La^nr — Death, no action for lies at common law, 165. Interstate commerce servant cannot sue under, 34. Comparative Negligence — Assumption of risk under, 139. 'Comparison between plaintiff's and defendant's negligence, 125, 128. Contributory negligence, see. Damage, see. Differs from rule adopted by federal statute, 101. Federal statute on, 99. Federal statute, 114, note. Georgia, see. Georgia statute, 100. charge of jury under, 107. statute construed, 102, 104. Illinois, see. Instructions must require comparison, 131. Jury must compare negligence of plaintiff with that of defend- ant, 131. Kentucky, rule as to not in force, 114, note. Origin of rule, 99. 728 INDEX TO employers' liability act. [References are to pages.] Comparative Negligence — Coniinued. Pre{X)ndeiance of negligence against defendant's, not sufficient, 130. Slight negligence of plaintiff, effect, 130. Tennessee, rule as to not in force, 113, note 43. Verdict cannot be directed, 143. Wilful injury no place in, 130. Wrong in principle, 412. Congress — Canal Zone, power in, 3(1. Constitutionality, see. District of Columbia, power in, 39. Powers limited to interstate commerce, 7, 27. to enact statute, 19. to enact fellow-servant rule^ 7. Territory, power in, 39. Constitutionality — Classifying instruniontalities, 18. Congress, see. Contract to release damages fers<)n not liable for, 187, 401. Counterclaim — Xot allowed, 147, note 98. Court — Jurisdiction of federal courts, 222. of state courts, 210, 211, 426, 430. D. Damages — Admiralty rule concerning, 133. commended, 137. origin of, 135. ApiKjrtionment in admiralty, 133. difficulty to make, 138. Georgia statute on, 109. how made, 139. rule as to, court can not lay down, 141. 730 INDEX TO employers' liability act. [References are to pages.] Damages — Con t in ued. Contract for release forbidden, 190. beneficiary not bound by, 208. constitutionality of statute on, 193. release by beneficiary, 208. Contributory negligence, when does not diminsh, 198. Costs, recovery, 187. Distribution, 188. Estate of deceased, does not belong to, 186. Funeral expenses, 180. Interest can not be recovered, 180. Judgment recovered by deceased for, 186. Meaning in case of death, 181. Medical expenses, 180. Eelief, receiving from association, 192. Solatium, by way of, not allowed, 180. Sufl'erings, for, when not allowed, ISO. Dieath by "Wrongful Act — Action for, who brings, 176. Beneficia)-ies, see. Beneficiaries, who are, 168. Common-law action does not lie to recover damages, 165. Complaint, necessary allegations, 178. Constitutionality of statute, 105. Deceased without right of action, to recover, 166. Failure of deceased to bring action, 166. Instantaneous death, right of action, 166. Statute concerning, 164. Statute of limitations as to, 173. Survival of action, 167. Widow's right to sue under state statute, 188. Defendants — Wlio are, 170. District of Columbia — Act of 1906 valid as to, 37. Power of congress in, 39. Employee — Servant, see. INDEX TO employers' LIABIIJLTY ACT. 731 [References are to pages.] Engine Wiper — Application of Statute to, 76. England — Kule as to fellow servant's negligence, 5. Workmen's compensation act, 5, 449. Error — Review, 224. Estate of Deceased — Damages for deatli, does not receive, 186. Evidence — Annuity tables may be used, 1S6. Damages in case of deatli, to show, 181. Declaration of deceased, 188. F. Felloxr Servant — Adoption of rule as to, 8. Austria, rule in, concerning, 5, 410. Basis of rule as to nonliability of master, 8. Belgium, 5, 410. England, rule in, concerning, 5. Exclusive remedy given to, 34. Fourteenth amendment, effect on legislation concerning, 15. France, rule in, concerning, 5, 6, 410. Germany, rule as to, in, 5, 409. History of, 408. Holland, 5, 410. Intrastate servant causing injury, 76, 84. Italy, rule as to, in, 5, 410. Nebraska statute construed, 83. Rule in European countries, 4, 410. Switzerland, rules as to, in, 5, 410. Validity of statute allowing a recovery for an injury occasioned by a fellow servant, 11, 13. asi to part contracts, 14. Florida — Comparative negligence, statute upon, 114, 7iote. Statute concerning, 712. 732 INDEX TO employers' liability act. [References are to pages.] Fourteenth. Amendment — Effect upon legislation concerning fellow servants, 13, 15. Freight Handlers — Eight to resort to statute, 75. French Law — Kule as to fellow servant's negligence, 5, 6, 410. Funeral Expenses — Recovery, 180. G. Oateman — Right to sue under statute, 7G. Crermany — Rule as to fellow servant, 5, 409. Georgia — Apportionment of damages, 109. Comparative negligence, statute, 100. charge to jury under, 107. differs from federal statute, 101, epitome of cases, 110. railway employee recovering, 108. statutes construed, 102, 104, 110. widow of employee recovering, 108. H. Hatraiian Islands — Statute ap])lies to, 39. Holland — Rule concerning fellow servant's negligence, 5, 410. Illinois — Comparative negligence, origin in. 99, 114, 116. Defendant's negligence clearly exceeding plaintiff's, 122. Extension of rule of comparative negligence, 117. Freedom from fault, 127. INDEX TO employers' LIABILITY ACT. 733 [References are to pages.] Illinois — Continued. Gross and slight negligence distinguished, 123. Ordinary care wanting, 117, 119, 121. Rule as to comparative negligence, 114. Slight negligence on plaintifl"'s account, 117, 121. Injury — Relation between the employment and accident, 76. What servant must cause, 78, 84. Instructions — Contributory negligence concerning, 145. Must require comparison, 131. Interest — Can not be recovered, 186. Interstate Commerce — Cab run by railroad not subject to, 46, note. Carrier engaged in, statute applies to, 39. Colorado case, 41. Illustrations as to, 47. Intrastate servant injuring interstate servant, 78, 84. Negligence to servant engaged in, 78. Ohio case, 41. Power of congress as to, 27. Railroad engaging in, 64. What is interstate commerce, 39, 44. When statute applies to carrier, 39, 40. Interurban Railway — Statute applies to, 43. lo'nra — Statute on contributory negligence, 712. Italy- Rule in, concerning injuries by fellow servant, 5, 410. J. Judgment — Bars administrator, when, 186. 734 INDEX TO employers' liability act. [References are to pages.] Jurisdiction — State court has, 210, 211, 426, 430. What federal courts have, 222. Jury — Compares negligence of plaintiff with defendant's, 131. Instructions concerning contributory negligence, 145. comparison of plaintiff's and defendant's negligence, must re- quire, 131. Verdict, cannot be directed, 143. K. Kentucky — Comparative negligence not in force in, 114, note. L. Liineman — Statute applies to, 75. M. Medical Expenses — Recovery in case of death, 180. Mexico — Ivule concerning fellow servant's negligence, 6. Michigan — Statute on comparative negligence, 714. Montana — Statute on comparative negligence, 715. N. Nebraska — Constitutionality of state statute, 23. Statute construed, 83. Statute, 717. INDEX TO EMPLOYERS' LIABILITY ACT. 735 [References are to pages.] Ifegligeiice — Admiralty, apportionment of damages, 133. Burden to show freedom from fault, lOG. Comparative negligence introduced by statute, 99. Georgia statute, 100, origin of rule, 99. Comparative negligence, see. Contributory negligence, see. Degrees of, 98. statute does not adopt, 143. Georgia, see. Gross and slight distinguished, 123. Illinois, see. Intrastate servant causing injury, 78, 84. PlaintifT's compared with defendant's, 125, 128. Relation of employment to injury, 76. Nevada^ — Statute on comparative negligence, 718. Ne-nr Jersey — Statute on comparative negligence, 719. Noinsuit — Act of 1908 forbids, 145, 7iote. Notice of Injury — State statute requiring not applicable, 226. O. Object — Purpose of statute, 1, 5. OMo — Statute on comparative negligence, 719. Ontario — Kule as to fellow servant, 6. Oregon — Statute on contributory negligence, 720, P. FMlippine Islands — Statute applies to, 39. 736 INDEX TO employers' liability act. [References are to pages.] Pleading — Beneficiaries, alleging who are, 172. Complaint, necessary allegations, 178. showing actions under statute, 223. Poor Person — Suit, may bring, without liability for costs, 187, 401. Porto Rico — Statute applies to, 39. Practice — State statute does not control, 226. Proximate Cause of Injury — Relation between employment and injury, 76. Q. Quebec — Rule concerning negligence of fellow servant, 6. R. Railroad — Carriers, see. Servant injured while loading railroad iron, 63. To what statute applies, 46, 50. While "engaging"' interstate commerce discussed, 64. Receivers- Right of action against, 224. Release of Damages — Constitutionality of statute as to, 193. Contract fur forbidden, 190. beneficiary, does not bind, 208. release by, 208. Damages, see. Receipt of relief money, 207. Remedial — Statute so construed, 38. Removal of Action — When can be, 222. INDEX TO employers' LIABILITY ACT. 737 [References are to pages.] Repairing Car — Servant injured while making, 75. Reports — Congress', on Employers' Liability Act, 407. Congress', on right of United States employes to recover dam- ages, 404 Risk — Assumption of risk, see. Statute as to, 95. S. Safety Appliance Act — Effect of violation producing injury to employee, 146. Servant — Burden to show interstate commerce serving, 63. Car repair, statute applies to, 61, 75. Employees covered by statute, 75. Employment in both intrastate and interstate service, 73. Engine wiper, 76. Gatemen, 76. Intrastate servant receiving injury, 78. laying track, 63. Lineman, 75. Loading railroad iron, 63. Protection of statute, when entitled to, 67, 70. State statute, can not sue under, 34, 35, 188. Telegraph operator, 51, 59. Ticket seller, 76. To whom statute applies, 46, 50. Track repairer, 56, 59, 75. Trainmen, 51, 59. What employees within statute, 59. When he enters on his work, 67, 70. While engaged in interstate commerce, 51. State Statutes — Effect of statute ujxtn federal statute, 28, 30, 33. Interstate commerce servant can not sue under, 34, 35, 188. Nulified by act of 1908, 421. Practice under not applicable to federal statute, 226. Superseded by federal statute, 35. 738 INDEX TO employers' liability act. [References are to pages.] Statute (Federal) — Act of 190tJ invalid, 19, 24, 25, 397. Act of 1908, 397. Act of 1908 valid, 19. Carriers, to what ones it applies, 39. Construction, 37. District of Columbia, Act of 1906 A'alid, 37. Effect of act of 1908 on state legislation, 28, 30, 33. Employers' liability statute, 397, 401. English employers' liability statute, 449. Exclusive remedy given, 34. Fourteenth amendment, effect on, 13, 15. Interstate commerce carriers, applies to, 39. Interurban railways, applies to, 43. Object, 1, 5. Poor person bringing suit, 187, 401. Power of congress to enact, 7, 19. Railroads, to what ones it applies, 39. Relation tetween employment and injury, 76. Remedial, 38. Result of decisions upon, 33. Retroactive, isj not, 220. Servant, to what class it applies. 46, 50. State legislation, effect upon, 28, 30, 33. Street railway, may apply to, 43. Supersedes state legislation, 35. Territories, effect of act of 19O0 in, 37. Validity as to past contracts of (■n'.])loynient, 14. When it can be applied, 44. "While," meaning as used in statute, 51. Statute of Ijimitations — Action must be brouglit witliin two years, 173. Rule as to fellow servant, 5. Wlien action accrues, 224. Street Railnray — Statute applies to, when, 43. Telegraph Operator — Statute applies to, 51, 59. INDEX TO employers' LIABILITY ACT. 739 [References are to pages.] Tennessee — Comparative negligence in, 113, note 43. Terminal Tracks — Injuries to a servant working on, 75. Territories — Act of 1906 valid in, 37. Pow^er of congress in, 39. Texas — Statute on comparative negligence, 720. Ticket Seller — Application of statute to, 76. Track Repairer — Statute applies, 56, 59, 75. Track laying, statute not applicable to, 63. Trainmen — Statute applies to, 51. V. Verdict — Directing, can not be done, 143. Nonsuit forbidden by act of 1908, 145, note. W. Waskington — Statute on comparative negligence, 722. WTiile Engaged in Interstate Commerce — Meaning, 51. Rule as to discussed, 44. Widouc — Beneficiaries, see. Right to sue under state statute, 188. 'Wisconsin — Constitutionality of fellow-servant statute, 23. Examples under state statute, 148. Practice under state statute, 163. Statute on comparative negligence, 723. INDEX TO SAFETY APPLIANCE ACT. [References are to pages.] A. Action — Civil action, recovering penalty, 322, 370, 374, o(i2, 5(i(i, 572, 57G, 590, 609, 613, 618, 023, 627, 645, 649, 665. Courts, see. Distinction between recovering damages and penalty, 322. Penalty, see. Penalty, action to recover is a civil action, 322, 572, 576, 500, 600, 613, 618, 623, 627. Removal to federal court, 301, 365. Air Brakes — Engine and tender counted as twn cars, 590. Percentage to train required, 590. Air Hose — Employee connecting, engaged in interstate commerce, 602. American Rail'way Association — Resolution concerning drawbar, 232. Asli Pans — Statute concerning, 520. Assumption of Risk — Bumper on car, 680. Coupling defective cars, 689. Employee, when be does not assume risk, 350. Grab irons, defective, 339, note. Safety cock, in turning, 689. Automatic Brakes — Brakes, see. B. Bad Order Card — Placing on defective car no defense, 300, 613. 741 742 INDEX TO SAFETY APPLIANCE ACT. [References are to pages.] Belt Railway — Cars used on must be equipped according to federal statute, 2G0, 557, 643. Boiler Inspection — Statute concerning, 513. Brakemen — Constitutionality of statute fi.xing number of to train, 343, note 26. Brake Step — Order of Interstate Commerce Commission as to, 464. Brakes — • Automatic, no statute requiring, 343, note 26. Car must liave handbrake, 304. Failure to equip train with, 342. Handbrakes, see. Xegligence in not equipping train with, 350, note 6a. Percentage of number to train, 342, 343. Statute concerning, 456. Steps foi", 466. Bumpers — Assumption of risk by employee as to, 689. Burden — Car used in interstate commerce, 285, Car, equipping, burden on defendant to show, 689. Due care in equipping cars, defendant must show, 649. Excuse for not equipping, defendant must show, 307, note 3. Ck)vernmcnt has to show car %\as not equipped as statute requires, 372, 550 In wliat respect appliance out of lepaiv, 690. Plaintill" in action to recover damages for injury, 689. Preponderance of evidence, 550. Rests on government to show defects, 562, 566, 572, 580. C. Caboose Cars — Kcjuipnienl, 489 to 496. California — Statute concerning comparative negligence, 711. Care — Burden to show diligence in equipping car, 689. Cars, see. Defect not discoverable, 627. INDEX TO SAFETV AI'PI.IANCi; ACT. 743 [References are to pagi-s.] Care' — Continued. Defined in statute, 288. Diligence in repairing no defense, 550, 582, 594. Duty to equip cars is absolute, 308, 313, 549, 507, 580, 582, G08, 64G, 641), 662, 689. Inspection, degree to be used, 530, 533. Ordinary care used, no defense, 544. Reasonable care used, no defense, 609, 618. Cars — Air brakes, see. Bad order card, placing on, no defense, 613, Belt railway, using defective car on, 260, 557. Both ends of cars must be equipped, 297, 567, 572, 585, 590, 594, 645, 662. Brakes, see. Care, see. Ck)uplers, see. Defect in, undiscoverable, 627. Defined, 288. Diligence in discovering defects, 308, 313. Distance car hauled immaterial, 247, 258. Drawbars, see. Duty to repair absolute, 567, 580, 582. Electric cars subject to statute, 290. Employee putting out of order is act of railway company, 582, 594. Empty cars must be equipped, 219, note e, 291, 292, 551, 669, in interstate train, 250, 292. Equipping according to statute, must be, 310, 628. Foreign car, defendant hauling over its line, 662. not bound to receive when defective, 301, 594. Four-wheeled car, 293. Handbrakes, must have, 304. Handbrakes, see. Handholds, see. Hauling in interstate train, 281, 544, 618, 623. not essential to commission of offense, 263. over another line of railway, 268, 273, note 45. Height of drawbars differing, 295. note 18. Inspection of continuous, duty, 649. Insurer of equipment, company is not, 649. Interstate articles carried by independent express company, 256. car used in "connection"' with intrastate car, 264. freight car loaded with, 291. must be equipped according to statute, 669, 744 INDEX TO SAFETY APPLIANCE ACT, [References are to pages.] Cars — Continued. Intrastate car on interstate railroad, 252. Knowledge of object in not an element of tiie offense, 335. Ladder, see. Lading immaterial to constitute olfense, 544. Logging cars, 293. Long commodities, loading car with, 304. M. C. B. defect card, placing on car, 300, 013. jVIaking up train, 262. Moved, must be to constitute offense, 5G7, 572, 046, 649. Xot loaded with interstate traffic, 251. Permitting to be hauled over defendant's railway, 267, 577. Presumption as to sufficiency of equipment, 313. Proof of use in interstate commerce, 284, note 59e, 285. Eeceiving defective ear from another railroad, not bound to do so, 301, 594. Repairing cars, see. Repairing en route, 550. Punning boards, 304. Running boards, see. Sand cars, hauling defendant's sand, 249. Sill steps, 304. Sill steps, see. Spur track, defective car on, 261. Switching defective cars, an offense, 259, 260. defective foreign cars, 019. Temporary suspension of transportation, 267. Terminal tracks, use of defective cars on, 2G0. Test under statute, 677. Train is test of statute, 251, note 12^/. Use of defective cars forbidden, 246, 263, 282, 594. in interstate commerce, 262, 264, 266, 248, note 7. what is a use, 250. when on switch track, 677. Cliaiiis — lirukcn, using on cars, 577. Colorado Case — Railroad wliolly within state, 271, 272, 283. Complaint — iiilerstate commerce, must show car was used in, 525. Constitutionality of Statute — Hours of labor statute, 380, 382, 384, Release of damages, 368. INDEX TO SAFETY Al'l'LIANCE ACT. 745 [References are to pages. ) Constitutionality of Statute — Continued. Resolutions of American Kail way Association, 232, note. Safety Appliance Act, 234, 634, 669. Construction of Statute — Intent of congress to be ascertained, 613. Liberally construed, 232, 237. Remedial, statute is, 669. Secret intent of legislation, 282. Used in moving interstate traflic, 248, note 7. Contributory Negligence- — Comparative negligence when case not based on, 670. Defeats action, 690. Defense of, still in force, 689. Knowledge of danger by employee, 689. Couplers (Automatic) — Adjacent cars, couplers defective, no excuse, 585. Automatic, must be, 293, 584, 691. locomotives must have, 509. Belt railway cars must have automatic couplers, 643. Both ends of car must have, 297, 551, 567, 577, 585, 590, 594, 645, 662. Broken so can not be used, 550. Coupling by impact, must, 594. Difficult to use, 551, 588, 590. Drawbars, see. Engine, on, below minimum height, 709. Height, failure to maintain at, 709. Insufficient operator, 300. Kind that must be used, 293. Kinking, 588, 083. employee going between car to adjust, 588. Models of, iising in evidence, 099. Necessity of going between cars to couple, 296, 588. Negligence, not to equip car with, 689. failing to use diligence, delinquency, 346. Order of Interstate Commerce Commission concerning, 509. Permitting car to be hauled with defective couplers^ 577. Preparation for coupling, 300. Reasonable efTort to operate, 551. Shims to raise couplers, 339. Stub pilot of locomotive, 348. 746 INDEX TO SAFETY APPLIANCE ACT. [References arc to pages.] Couplers (Automatic) — Continued. Sufficiency, 294, 296. Uncoupling, going between cars to make, 298, 525. Courts — Federal question, when presented, 301. Removal of actions from state court, 301, 365. State courts have power to entertain action for damages, 364. Damages — Amount, 670. Comparative negligence, when does not reduce, 670. Suit in state court to recover, 364. Validity of statute concerning releasing, 368. What employees may recover, 347. Defect in Car — Knowledge of not necessary to constitute offense, 567, 572, 580, 582. Door Step — Order of Interstate Commerce Commission, 493. Dra^wbars — Couplers, see. Height above rails, 208, 299, 461, 550. Order of Interstate Commerce Commission, 460, 461. Repairing en route, 550. Resolutions of American Railway Association, 232. validity, 232, note. E. Electric Cars — Subject to statute, 290. Employee — ■Congress may protect, 544. Coupler, difficult to use, 588, 590. putting out of order, railroad liable, 594. Uncoupling, going between cars to make, 525. Empty Cars — Cars, sec. Must be equipped, 219, note e, 250, 291, 292, 551, 669. INDEX TO SAFETY APPLIANCE ACT. 747 [References ai-e to pages.] Engine — Automatic couplers, must have, 509. Couplers on, 709. Locomotive, see. Evidence — Disposition of cars, 670. Inspector's, weiglit, 665. failure to inform defendant of their official character, 609, 70&. Jury must consider all the evidence, 665. Models of couplers, using, 699. Positive and negative, relative force, 650. Preponderance sufficient, 588, 602, 609, 645, 649. Proof of use of car in interstate commerce, 284, note 53, 285. Reasonable doubt, 285. Recitals in defendant's records, 670. Reconciliation of conflicting statements, instruction, 683. Satisfactory, must be to recover penalty, 550, 562, 566, 572, 580. Sufficiency to recover penalty, 285, 627. Weight, 670. Express Company — Carrying interstate traffic, 256. P. Federal Question — When presented, 301. Federal Court — Removal of case to, 365. Flat Cars — Equipment, 479. Freiglit Car — Equipment, 511. G. Geddes Case — Discussion in, 209 to 271, 283. Denied as an authority, 273. Gondola Cars — Equipment, 472, 474, 477. 748 INDEX TO SAFETY APPLIANCE ACT. [References are to pages.] Grab Irons — Handliolds, see. Grip Irons — Statute requiring, 456. H. Hand Brakes — Hopper and gondola cars must have, 472. Pv,epairing. 459. Kules concerning, 457, 464 to 406, 472, 474, 475, 477, 479, 480, 482, 486, 489, 496, 507. brake steps, 466. Statute requiring, 450. Handholds — Car must have, 303, 304, Coupling lever used as, question for jurj^ 665. Failure to provide or repair, 337, 376. Interstate Commerce Commission adopt rules concerning, 457, 460, 461, 462. Kind, what is sufficient, 605. Location not fixed by statute, 609. Long commodities on cars, 304. Number of violations, 602. On side of car not sufficient, 660. Order of Interstate Commerce Commission, 464, 400, 475, 470, 478, 480, 481, 484, 485, 487, 488, 490, 491, 494, 495, 490, 497, 498, 499, 500, 501, 503, 500. Penalty f(jr failure to equip, 370, 458, 459. Repairing, 459. Eules concerning, 409 to 471, 472, 474. Statute requiring, 456. Substitute, 338, 002, 609. Sufficiency, 303, 304, 339, note. Train defined, 002. Where to be put, 303, 304, 338, 601. Handrails — Order of Interstate Conmierce Commission, 508, 509. High'cray of Interstate Commerce — Another company using, 208, 273, note 45. Permitting cars to be hauled over, 207. Eailroad devoted to, 252. INDEX TO SAFETY APPLIANCE ACT. 749 [References are to pages.] Hopper Cars — Equipment, 472. Hours of Labor — Act of God, excuse, 386. Constitutionality of federal statute, 380, 384. state statute, 382. Construed liberally, 38G. Delay in starting caused by another train, 393. Hot box causing delay, 391. Hours for labor,' 390. Inspecting engine, 390. Injury to employee, right of action, 393. Interstate commerce commission's powers, 384. Jury, question for, 394. Period of consecutive hours, 398. Side-tracking train, 392. Statute, 522. Statutorj' provisions, 379. Steam, unable to raise, 391. Time lost by failure of locomotive to raise steam, 301. Time delayed cannot be deducted from period of time of service, 392. Unavoidable accident, 38G. I. Inspectors — Failure to disclose defects in cars, 550. Informing defendant of defects in cars, need not, 618, 623, 699, 700. Instructions — Degree of care required by defendant, 700. Refusal of one covered by another, 700. Interstate Car — "Connection" with intrastate car, 264. Interstate Commerce — Air hose, employee coupling, engaged in, 602. Belt railway, statute applies to, 644. Car must be sho^\^l to have been used in, 536. Freight designed for another state not yet left state of assign- ment, 269. Highway of, 252. Interterritorial Act of 1903, 246. 750 INDEX TO SAFETY APPLIANCE ACT. [References are to pages.] Interstate Commerce — Coniinueil . Instrumentalities of, 248, note 7. Moving car in, necessary, 567. Power of Congress concerning, 279. Proof that car was used in, 284, note 59e, 285. Railroad wholly within one state, 269 to 273, 536. Return of train to state of origin, 249. Statute concerning, 303. Switching foreign cars, G19. Test, 243, 677. What is, 243, 244, 537. When begins, 623, 644. Interstate Commerce Commission — Order concerning equipment of cars, 460. Rules may adopt concerning cars, 457. Interstate Railroads — Belt lines, 557. Crossings over, 279. Highway of interstate commerce, see. Interstate Traffic — Car used in, 262. Interstate commerce, see. What is, 248. Intention — Secret intention of legislature, interpreting statute, 282. J. Jeopardy — 'J'wice in jeopardy, 378. Judicial Notice — Safety Appliance Act, 366, Jury — Contributory negligence, question for, 678. Evidence, all, must consider, 665. Hours of labor statute, 394. Penalty, action to recover, 373. Trial by in action for penalty, 373. Verdict directing, 373. Whether injured servant was engaged in interstate commerce, 301. INDEX TO SAFETY APPLIANCE ACT. 751 [References arc to pages.] K. Knoxrledge of Defective Car — Not necessary to commission of offense, 335. Ladders — Caboose cars, 489 to 496. Car must have, 304. Flat cars, 479. Freight cars, 511. Gondola cars, 472 to 479. Hopper cars, 472 to 479. Locomotives, 502 to 510. Order of interstate commerce commission concerning, 467, 474, 477, 478, 479, 483, 485, 490, 493, 507. Passenger cars, 496 to 502. Rules concerning, 457, 467 to 469. Statute requiring, 456. Locomotive — Engine, see. Equipment, 502 to 510. Ladders on, 502 to 510. Stub-pilot, using on as an act of negligence, 348. M. M. C. B. Defect Card — Placing on defective car no excuse for violating statute, 300, 613. when used, 301, note 30. N. Negligence — Automatic couplers, failure to use, 346. Brakes, failure to use, 350, note 6a, 345, note 28. Burden to show, 689. Contributory negligence by plaintiff, 355, 362. does not defeat action, 362. Drawbars defective, 340. Duty as to cars, 310. 752 INDEX TO SAFETY APPLIANCE ACT. [References are to pages.] Negligence — Con t inued. Excuse for defendant, none allowed, 308, 310, 313, 544, 567, 580, 58:^, 008, 640, 649, 662, 689. Failure to equip car with couplers, 689. Handholds defective, 340, note. Penalty not dependent upon, 640. Pleading, sufficiency, 360. Proximate cause of injury, 348. Eemoval of actions to Federal Court, 365, State courts, actions to recover damages, 364. Stub-pilot, using ori to constitute, 348. Two acts combining to produce injury, 363. What employees may use, 347. P. Passenger Cars — Equipment, 496 to 502. Penalty — Action to recover, 322, 369. is a civil case, 370, 374, 562, 566, 572, 576, 590, 009, 613, 618, 623, 627, 645, 649, 065. Amount, 375. Burden on government, 369, 372. Criminal action, 369. Evidence sufficient to recover, 372, 627. Handholds, failure to equip car with, 337, 376. Hauling car in interstate train, 618, 623. unequipped car, incurs penalty, 590. Incurring, 584. Jeopardy, 378. Joint action to recover, 371. Jury trial, entitled to, 373. Knowledge of defect in car, 335. Operating car in interstate commerce, 551. Petition wf government to recover, 371, 521. Presumption, 369. Proof, sufficiency, 372, 627. Verdict, directing, 373. What must be shown to recover, 536. Pleading — Action for negligence, 366. Government's j.'ctition to recover penalty, 371, 521. INDEX TO SAFETY APPLIANCE ACT. 75,J [References are to pages.] R. Reasonable Doubt — Evidence, sec. Proof beyond need not be made, 285, 045, 649. Release of Damages — Validity of statute, 068. Removal of Action — \Vhen allowed, 301. Repairs — Burden to show excuse for not making, 307, note 3. Construction of statute concerning, 322. Diligence in (discovering defect, 308. ill making, 306. Duty to make it absolute, 310, 585, 594. Hauling car to shops for, 328, 331, 585, 670. Immediate, should be made, 585, 594. In transit, car in, 627. Knowledge of defect, not necesRaiy to oU'ense, 308. Presumption as to, 313, 332, 335, 627. Sending cars to repair shops, 262. Shops for, necessity to have, 331. note 11